MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  21 December 2000
	DOCKET NUMBER:  AR2000047525

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Ernest W. Lutz		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show that his Reentry Eligibility  (RE) code was RE-1, that the reason for his discharge was convenience of the Government, and that his discharge was honorable.  He indicates that, under current standards, he would not have received a general discharge.  He indicates he arrived at this conclusion because he has had two tours in the Army National Guard.  Further, he indicates that he received several letters of commendation while on active duty.  He indicates that he is currently meeting with Army Reserve and Air National Guard recruiters and it would be a source of great pride and accomplishment if he could have an RE-1 code and an honorable discharge.  He feels his record of Article 15’s indicates only isolated or minor offenses and that he was so close to finishing his tour that it was a little unfair to give him a bad discharge.  He was young and, if he had some type of mentor, he would have been pointed in the right direction.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

On 2 August 1979, he enlisted in the Army Reserve Delayed Enlistment Program.

On 5 September 1979, at 17 years of age and with parental consent, he enlisted in the Army.  He completed his required training and was awarded military occupational specialty 54E (Nuclear Biological Chemical Specialist).  He was advanced to pay grade E-3 effective 5 September 1980.

On 18 October 1979, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for assaulting another soldier on 6 October 1979.  His punishment included a forfeiture of $98 pay, extra duty and restriction.

On 15 April 1980, he accepted NJP for assaulting another soldier on 12 April 1980.  His punishment included a forfeiture of $109 pay, extra duty and restriction.

On 2 June 1980, he accepted NJP for being drunk and disorderly on 18 May 1980.  His punishment included confinement in the Correctional Confinement Facility for 7 days and forfeiture of $100.

During the period 30 April to 10 September 1981, he was formally counseled on four occasions for missing formations and on two occasions for failure to repair.

On 20 May 1981, he accepted NJP for his failure to obey a lawful order on 18 May 1981.  His punishment included extra duty, restriction, reduction to pay grade E-2 and forfeiture of $135, suspended.  The suspension was later vacated.

On 13 October 1981, the applicant’s unit commander advised him that he intended to recommend his discharge under Army Regulation 635-200, chapter 13 based on his continuous insistence on totally disregarding appropriate standards of military discipline.  He was also advised of his rights. 

On 13 October 1981, the applicant, after consulting with legal counsel, acknowledged the commander’s intent and waived consideration of, and personal appearance before, a board of officers.  He also waived legal representation and elected not to make statements in his own behalf.

On 13 October 1981, the commander initiated a request for separation under Army Regulation 635-200.

On 16 October 1981, the applicant was cleared for separation by a mental status evaluation and by a physical examination.

On 17 November 1981, the appropriate separation authority approved the request and directed the applicant be issued a General Discharge Certificate (GDC).

On 8 December 1981, the applicant was discharged and issued a GDC under the above-cited regulation for unsuitability-apathy.  His separation document indicates he had 2 years, 3 months and 4 days of creditable service and was over 19 years of age.  The narrative reason for separation was unsuitability-apathy, defective attitude or inability to expend effort constructively.  He was assigned RE code 3.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  Certain persons who have received non-judicial punishment are so disqualified.

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  The regulation requires that separation action be taken when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory soldier.  Service of soldiers separated because of unsatisfactory performance under this regulation was characterized as honorable or under honorable conditions.

Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 3-7, provides that an honorable discharge is a separation with honor.  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 inappropriate.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 December 1981, the date he was discharged from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 8 December 1984.

The application is dated 26 August 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

__kk___  ___gw___  __el____ CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000047525	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001221	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	UP Discharge	
2.		
3.		
4.		
5.		
6.