ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 18 June 2019 DOCKET NUMBER: AR20180006962 APPLICANT REQUESTS: * Upgrade of his general discharge to honorable * Correction of his Reentry (RE) Code from Re-4 to RE-3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Extract/page from Army Regulation (AR) 635-200 (Personnel Separations) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he requests the type of discharge (Block 24) be reviewed and upgraded from general to honorable. He was informed his reasons for the initial discharge was for "Unsatisfactory Performance" debt. He is requesting the upgrade and review as the person reporting the debt, was his then landlord (good friend of the company commander), which he believes was the reason for the harsh penalty, as he had no history of this indebtedness behaviors. Secondly, he asks that his RE Code (Block 27) be reviewed and adjusted to read RE-3 per AR 635-200, paragraph 13-34, which states, Reentry into Army; (a) To preclude reentry into the Army unless authorized by appropriate authority, the DD Form 214 of individuals, with the exception of all enlisted women and those enlisted men referred to in paragraph 13-4 (a) of AR 635-200 who are discharged under this chapter will be coded RE-3. This is the code that should be reflected on his DD Form 214. 3. Review of the applicant’s record shows: a. He enlisted in the Regular Army on 2 October 1986 and held a personnel military occupational specialty. b. He served in Germany from 25 March 1987 to 13 March 1990. He reenlisted on 11 August 1989. He was advanced to specialist four/E-4 on 1 September 1990. c. Between August and October 1990, his command received three letters of indebtedness as follows: * 22 August 1990, Letter of indebtedness, Colonial Recovery Liquidation Services, $1,304 * 29 August 1990, Dishonored check GQ Sportswear, $114.91 * 15 October 1990 Letter of indebtedness/two dishonored checks, $289 Kay Knight of DPCA d. Meanwhile, in September 1990, his commander initiated a Bar to Reenlistment Certificate citing his continued indebtedness and dishonored checks. The bar was approved on 16 November 1990. e. On 2 April 1991, the applicant's immediate commander advised him of his intent to initiate separation action against him under the provisions of AR 635-200, chapter 13 for unsatisfactory performance. The immediate commander stated that the applicant’s conduct during the period of his assignment to Fort Ritchie has been unsatisfactory. He had been counseled by his supervisors on numerous occasions for minor disciplinary infractions to include many for indebtedness. The commander believed it likely that the circumstances forming the basis for initiation of separation proceedings would continue or recur, and that the applicant would not be able to perform duties effectively in the future. f. On 29 March 1991, the applicant acknowledged notification of the proposed separation action. He subsequently consulted with legal counsel. He acknowledged that: * he had been advised of the basis for the contemplated separation action under the provisions of chapter 13 of AR 635-200 * he had been advised of the effect on future enlistments in the Army, the possible effects of a general discharge and of the procedures and rights that were available to him * he elected to submit a statement in his own behalf (not available for review) * he may apply to the Army Discharge Review Board or the ABCMR for a review of his characterization of service; however, the act of consideration does not imply an upgrade of his discharge * he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life g. Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander initiated separation action against him under the provisions of chapter 13 of AR 635-200 due to unsatisfactory performance. h. The applicant rendered a statement wherein he admitted he had been counseled multiple times but attributed his poor performance to medications he was taking that caused him sleeping problems. i. The separation authority reviewed the separation action; waived further rehabilitation requirements; approved the applicant's discharge under the provisions of AR 635-200, chapter 13; and directed that his service be characterized as under honorable conditions with issuance of a General Discharge Certificate. j. On 17 April 1991, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under honorable conditions (general) under the provisions of chapter 13 of AR 635-200, due to unsatisfactory performance. He had completed a total of 4 years, 6 months, and 16 days of creditable active military service. (1) He was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, Army Achievement Medal, Army Good Conduct Medal, Sharpshooter Qualification Badge with Rifle Bar (M-16) and Hand Grenade, Army Commendation Medal, and National Defense Service Medal. (2) He was assigned Separation Code JHJ and RE Code 4. 4. By regulation (AR 635-200), 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. 5. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 6. By regulation (AR 635-5-1), Separation Code "JHJ" is 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 AR 635-200, chapter 13. The Separation Code/RE Code cross-reference list in effect at the time shows that a separation code of "JHJ" was assigned an RE code of "3." BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. The Board also concluded his REUP Code was provided in error, and should read RE-3. Additionally, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on the DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. 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: * adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 7 July 1986 until 10 August 1989.” * changing the entry in block 27 to reflect RE-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 upgrading the characterization of his discharge. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel: a. 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. A general or honorable discharge was considered appropriate. b. 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. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that the SPD code "JHJ" is the appropriate code to assign Soldiers separating under the provisions of AR 635-200, paragraph 13-2a, due to unsuitability-personality disorders. 3. AR 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes: * An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met * An RE-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 * An RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The table in effect at the time of his discharge shows the SPD code of "JHJ" has a corresponding RE code of "3." 5. DOD guidance, 25 July 2018, subject: Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity. Injustice, or Clemency Determinations, provides standards for Discharge Review Boards (DRBs) and Boards for Correction of Military /Naval Records (BCM/NRs) in determining whether relief is warranted on the basis of equity, injustice, or clemency. It states, in pertinent part: a. While not everyone should be pardoned, forgiven, or upgraded, in some cases, fairness dictates that relief should be granted. The Boards are trusted to apply this guidance and give appropriate consideration to every application for relief. b. This guidance does not mandate relief, but rather provides standards and principles to guide DRBs and BCM/NRs in application of their equitable relief authority. Each case will be assessed on its own merits. The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each board. Relief is generally more appropriate for nonviolent offenses than for violent offenses. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, DRBs and BCM/NRs should also consider, among other matters: * An applicant's candor * Severity of misconduct * Length of time since misconduct * Acceptance of responsibility, remorse, or atonement for misconduct * The degree to which the requested relief is necessary for the applicant * Character and reputation of applicant * Meritorious service in government or other endeavors * Evidence of rehabilitation and job history * Availability of other remedies * Whether misconduct may have been youthful indiscretion * Character references ABCMR Record of Proceedings (cont) AR20180006962 4 1