IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150003748 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 an upgrade of the separation code of "JHJ" and the reentry (RE) code of "3" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 October 1998. 2. The applicant states, in effect, that following his 1998 discharge, he enlisted in the California Army National Guard (CAARNG) and he has served honorably since that time. He believes this honorable service and his performance evaluations reflect contributions to the CAARNG that are sufficient to upgrade his separation code and RE code on his 1998 discharge. 3. The applicant provides the following documents: * DD Form 214, for the period of service ending 19 October 1998 * Three DD Forms 214 for the Army National Guard of the United States (ARNGUS) periods of service ending 29 September 2006, 15 August 2014, and 31 December 2014 * Three DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the periods 31 October 2011 through 29 July 2014 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 is currently serving in the CAARNG in the rank/grade of sergeant (SGT)/E-5, in military occupational specialty (MOS) 42A (Human Resources Specialist). 3. He enlisted in the Regular Army on 10 February 1998. He completed basic training; however, he failed to complete his advanced military training. Therefore, he was not awarded an MOS. 4. A review of his record reveals multiple instances of counseling by his chain of command for various infractions, including failure to follow instructions, disobeying lawful orders, improper authorization to be off-post, lying to an NCO, and failure to be at his appointed place of duty from 27 July through on or about 26 August 1998. 5. He underwent a mental status evaluation on 3 September 1998 and his behavior was determined to be normal. He was fully alert, fully oriented, and his mood was unremarkable. His thinking process was clear, his thought content was normal, and his memory was good. Additionally, he was psychiatrically cleared for any administrative actions deemed appropriate by his chain of command. 6. The applicant’s commander notified him on 28 September 1998 of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-2a (1), by reason of unsatisfactory performance. The applicant’s commander cited as the baes for his recommendation that he felt the applicant would not develop sufficiently to participate satisfactorily in further training and become a satisfactory Soldier. 7. The applicant acknowledged receipt of his commander's notification memorandum. He also acknowledged he understood the basis for the contemplated action and its effects, the rights available to him, and the effect of any action taken by him to waive his rights. He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he was issued a less than fully honorable discharge and he understood that if he received a character of service less than honorable he could make application to the Army Discharge Review Board (ADRB) or to this Board for an upgrade. However, he realized that an act of consideration by either board did not imply his discharge would be upgraded. He declined the opportunity to consult with counsel and did not submit any statements on his own behalf. 8. On 30 September 1998, the appropriate authority approved his separation under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with a character of service as honorable. 9. On 19 October 1998, he was discharged in accordance with the separation authority's directive after completing 8 months and 10 days of net active service. His DD Form 214 shows in: * Item 24 (Character of Service), "Honorable" * Item 25 (Separation Authority), " Army Regulation 635-200, Chapter 13 * Item 26 (Separation Code), "JHJ" * Item 27 (Reentry Code), "3" * Item 28 (Narrative Reason for Separation), "Unsatisfactory Performance" 10. There is no evidence he applied to the ADRB for a review of his discharge within its 15-year statute of limitations. 11. The applicant provides: a. A copy of his DD Form 214 for his period of service ending 19 October 1998, which he desires to be corrected. b. Three DD Forms 214, covering his ARNGUS periods of service ending on 29 September 2006, 15 August 2014, and 31 December 2014, which show he was honorably released from active duty by reason of completion of required active service, thereby showing he continued to serve honorably. c. Three NCOERs, covering the period 31 October 2011 through 29 July 2014, which show he performed his duties and was evaluated as successful during those periods of service. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely. Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 13. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for ARNG. This regulation provides 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. Table 3-1 provides a list of RE codes. * the RE Code "1" applies to Soldiers who have completed their terms of active service who are considered qualified for enlistment if all other criteria are met * the RE Code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible unless a waiver is granted 14. Army Regulation 635-5 (Separation Documents), then in effect, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active service. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. 15. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation code to be entered on the DD Form 214. It identifies SPD code "JHJ" as the appropriate separation code to assign enlisted Soldiers who are administratively discharged when the narrative reason for discharge is unsatisfactory performance and the authority for discharge is Army Regulation 635-200, chapter 13. 16. The U.S. Army Human Resources Command publishes a cross-reference list of separation codes and RE codes. The cross-reference list in effect at the time shows that a separation code of "JHJ" was assigned an RE code of "3." DISCUSSION AND CONCLUSIONS: 1. The applicant's request for correction of his DD Form 214, for the period ending 19 October 1998 to show upgraded separation and RE codes was carefully considered. 2. He contends he enlisted in the CAARNG in 2000 and his continued honorable service since that time should be taken into consideration. Therefore, his separation and RE codes should be upgraded. However, the character of his CAARNG service is not relevant to his Regular Army service as documented on his DD Form 214. 3. His record contains numerous counseling statements from his chain of command because of unsatisfactory performance leading to his discharge under Army Regulation 635-200, chapter 13. 4. The evidence of record shows, for the period of service in question, that the separation code "JHJ" was the correct separation code assigned to an enlisted Soldier separated under the provisions of Army Regulation 635- 200, chapter 13. The applicable regulation and policy, in effect at time, established the RE code of "3" as the proper RE code to assign an enlisted Soldier separated with the separation code "JHJ." 5. The DD Form 214 is a document meant to reflect what was accurate at the time of separation. As a result, there is no error or injustice in the entries on his DD Form 214 for the period of service ending 19 October 1998. 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) AR20140007304 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150003748 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1