IN THE CASE OF:	  

		BOARD DATE:	  5 February 2014

		DOCKET NUMBER:  AR20130009228 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the correction of his records by:

* removing the bar on his reenlistment (i.e., change his reenlistment (RE) code)
* upgrading his general discharge to an honorable discharge

2.  The applicant states:

	a.  He received a Bar to Reenlistment because of adverse conditions which resulted in his having to go absent without leave (AWOL).  He had a broken vehicle that needed to be fixed and when he was denied leave to fix his vehicle he went AWOL anyway.   

	b.  While at his first duty station in Germany, he was not working in his military occupational specialty (MOS) 19F (Tank Driver) but was not given the corresponding MOS 71L (Administrative Specialist).  This resulted in his being adversely affected when he returned to the United States.  He was unfamiliar with his MOS and was treated as such by the other Soldiers in his new unit at Fort Carson, CO.

	c.  His duty performance in Germany was stellar and he should have been promoted to specialist four (SP4)/E-4 but an Army-wide freeze took effect so he was not promoted.  He was doing E-5 work as an E-3 by being in charge of the unit's accountable mail section.  He was not trained for the job but did his best and never had any mail go missing.  If he had stayed in Germany and finished his enlistment there, he would have been promoted to SP4 and received an honorable discharge.

	d.  As a result of returning to the United States all he got was grief.  He was discharged only 4 months before his enlistment would have ended so he basically completed his enlistment.  He feels his discharge should be upgraded to honorable and the Bar to Reenlistment removed.  He is 50 years old and cannot reenlist in the Army anyway so it seems pointless.

	e.  He made some mistakes but it was because he was young and thought he was backed into a corner.  Overall, he was a good and loyal Soldier and thinks that his good service outweighs the bad things that happened.  While he was waiting for his discharge, he was exposed to ridicule and given every bad job his bosses could find for him to do.  Since his discharge, he has not been able to work for the Post Office which he was more than qualified to do and he thinks he has paid his dues for his transgressions.  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 25 February 1981 for a period of 3 years when he was almost 19 years of age and he held MOS 19F.  He completed basic training and, on 4 March 1981, he was assigned for advanced individual training (AIT) to the 2nd Battalion, 1st AIT Armor Brigade, Fort Knox, KY.

3.  On 12 May 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty.

4.  On 24 June 1981, he was assigned to the 2nd Battalion, 32nd Armor Regiment, Germany.  On 18 September 1981, he was promoted to the rank/grade of private first class (PFC)/E-3. 

5.  On 14 January 1983, he was assigned to the 2nd Battalion, 34th Armor Regiment, Fort Carson, CO.

6.  On 21 March 1983, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from his assigned unit from 11 to 16 March 1983.  The punishment imposed included reduction to the rank/grade of private (PVT)/E-1.  

7.  His DA Form 2-1 (Personnel Qualification Record) shows he was also reported as AWOL from his assigned unit from 18 to 25 April 1983.

8.  On 22 July 1983, his immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 for unsatisfactory performance.  The commander cited the specific reasons as his poor performance and lack of desire to Soldier.

9.  He subsequently acknowledged notification of the proposed discharge action.  He acknowledged he was advised of the basis for the contemplated separation action, the possible effects of a discharge under honorable conditions, and of the procedures and rights available to him.  He further acknowledged he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life.  He waived his right to seek legal counsel and declined to submit a statement in his own behalf.

10.  The separation authority subsequently approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with the issuance of a General Discharge Certificate.  On 2 September 1983, he was discharged accordingly.

11.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance, with an under honorable conditions characterization of service and an RE code of 3 and a separation code of JHJ.  He completed 2 years, 5 months, and 27 days of active service with 12 days of lost time due to being AWOL.

12.  His DA Form 2-1 shows throughout his military service he was assigned in duty MOS 19F or 19E (M60 Armor Crewmember).
13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used.  The regulation shows that the SPD code of JHJ as shown on the applicant’s DD Form 214 is appropriate for involuntary discharge when the narrative reason for discharge is unsatisfactory performance and the authority for discharge is Army Regulation 635-200, chapter 13.

17.  The SPD Code/RE Code Cross Reference Table states that when the SPD code is JHJ then an RE code of 3 will be assigned.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received on two occasions (including one before he ever arrived in Germany) for failure to report and for being AWOL.  In addition, the evidence of record shows he subsequently was reported as being AWOL.  Accordingly, his immediate commander initiated separation action against him.

2.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were therefore appropriate considering all the facts of the case.  Based on the authority and reason for separation, he was properly assigned an SPD code of JHG and a corresponding RE code of 3.
3.  The applicant contends that his discharge should be upgraded because he was young and didn't know any better at the time of his service.  Records show that he was almost 21 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Based on his overall record, the applicant's service did not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130009228





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ABCMR Record of Proceedings (cont)                                         AR20130009228



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