IN THE CASE OF: BOARD DATE: 19 April 2012 DOCKET NUMBER: AR20110020595 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 that his uncharacterized service be characterized as honorable and that his separation code, reentry eligibility (RE) code and narrative reason for separation be changed to reflect information that reflects his exemplary performance throughout his service. 2. The applicant states, in effect, that at the time the Army was going through a draw down and had an excess of people in his unit and a company formation was called and the first sergeant asked if anyone was interested in getting out of the service and he raised his hand along with others. He goes on to state that he completed his advanced individual training with honors and parachutist training at Fort Benning, Georgia and at no time was his conduct or performance below what was required. He also states that legal advice was never offered or suggested and he regrets that he was unaware of the repercussions of the discharge he received. However, he has since discovered that he should not have been discharged as an entry level separation because he had more than 180 days of active service and his DD Form 214 clearly shows that he had 7 months and 15 days of service, which equates to about 215 days of active service. Accordingly, he should have been honorably discharged. 3. The applicant provides a two-page letter explaining his application and a list of documents submitted with his application. 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 in Cleveland, Ohio on 2 October 1990 for a period of 3 years and 18 weeks for training as a combat engineer and airborne training. He completed his one station unit training at Fort Leonard Wood, Missouri and his airborne training at Fort Benning, Georgia and was transferred to Germany on 23 February 1991. He was assigned to an engineer company in Neckarsulm. 3. On 1 May 1991 the applicant's commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 11-2a,b,c for unsatisfactory performance. He cited as the basis for his recommendation that the applicant could not adapt socially or emotionally to military life and that his behavior was detrimental to good order and discipline. Additionally, he had shown character and behavior characteristics that were not compatible with satisfactory continued service. He also advised the applicant that his service would be uncharacterized and that he had the right to consult with counsel. The applicant had served 6 months and 29 days of active service. 4. The applicant elected not to submit a statement in his own behalf and he declined the opportunity to consult with counsel. Both declinations were in writing. 5. The appropriate authority approved the recommendation for discharge on 14 May 1991 and directed that he not be transferred to the U.S. Army Reserve. 6. On 16 May 1991 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 11-3a, due to entry level status performance and conduct. He had served 7 months and 15 days of active service. His character of service was "Uncharacterized" and he was issued an RE Code of "3." His DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time of his discharge incorrectly reflected in block 12a. that he entered active duty this period on 2 October 1991. 7. On 4 June 1991 the applicant applied to the Board requesting that his DD Form 214 be corrected to show that he entered active duty on 2 October 1990 and that he had served 7 months and 15 days of active service. The administrative staff of the Board in St. Louis, Missouri issued him a DD Form 215 on 18 September 1991. 8. On 7 February 1992 a court order in Columbiana County, Ohio approved the applicant's request to change his legal last name. 9. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for a change of his character of service within that board's 15-year statute of limitations. 10. Army Regulation 635-200, chapter 11 provides the policies and procedures for separating individuals who are in an entry level status (have completed less than 180 days of active service as of the date separation action is initiated) who cannot meet the minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation or self-discipline. It provides that service under this provision will be uncharacterized unless the Secretary of the Army determines that a characterization of honorable is warranted by unusual circumstances involving personal conduct and performance of duty. Individuals who have more than 180 days of service will be separated under another provision of this regulation. 11. Army Regulation 635-200, chapter 13, in effect at the time, established policy and provided guidance for eliminating enlisted personnel for unsatisfactory performance and who were unsuitable for further military service. An individual could be separated for unsatisfactory performance if it was determined that the member would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 12. Pertinent Army regulations provide that individuals will be assigned RE codes prior to discharge or release from active duty based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. a. RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. A waiting period of 2 years from separation is required before a waiver may be submitted through a local recruiting office. 13. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information that is current as of the effective date of separation. Changes that occur subsequent to the date of separation will not be entered on that form retroactively unless the change occurred during the period covered by that form and the change was approved by the appropriate authority. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that he was improperly discharged under the provisions of Army Regulation 635-200, chapter 11, for entry level separation because he had more than 180 days of active service has been noted and appears to have merit. The evidence of record shows that he had 6 months and 29 days of active service on the date separation proceedings were initiated and therefore was not eligible for an entry level separation. 2. Based on the circumstances in this case, it appears the applicant should have been processed for discharge under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance. However, since the chain of command failed to do so at the time, it would be inappropriate to do so at this time because a discharge under chapter 13 normally results in a discharge under honorable conditions and it would amount to a denial of the applicant's procedural due process rights. 3. Therefore, in the interest of equity, the applicant's discharge should be corrected to show that he was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-3, due to Secretarial Authority, with a separation code of "JFF." 4. Nevertheless, in regard to his RE code, the applicant was still not fully qualified for reenlistment. Therefore, his RE code of 3 remains valid. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X____ ___X_____ ____X____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 showing he was honorably discharged under the authority of Army Regulation 635-200, paragraph 5-3, Secretarial Authority, with a separation code of "JFF," and an RE code of "3." 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his RE code. ____________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) AR20110020595 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110020595 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1