BOARD DATE: March 4, 2010 DOCKET NUMBER: AR20090016753 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 discharge under other than honorable conditions be upgraded. He also requests that his reentry eligibility (RE) code be changed so he can enlist. 2. The applicant states that he was 20 years old and very immature at the time of his indiscretion that precipitated his discharge from the Army. Since his discharge he has matured considerably and he acknowledges the mistakes he made in his youth. He indicates that he is currently laid off from the construction field where he has worked for nearly 8 years and that he has striven to make himself a valuable member of any organization to which he belongs. 3. The applicant provides one character reference letter in support of 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 was born on 8 November 1973. He enlisted in the Regular Army on 3 June 1992 for a period of 4 years and 17 weeks. He successfully completed one-station unit training in military occupational specialty 11B (infantryman) and airborne training. 3. The applicant was absent without leave (AWOL) on 7 September 1993 and returned to military control on 5 January 1994. On 12 January 1994, charges were preferred against the applicant for the AWOL period. Trial by special court-martial was recommended. 4. On 13 January 1994, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10. He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. He elected not to make a statement in his own behalf. 5. On 4 February 1994, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions. 6. Accordingly, the applicant was discharged under other than honorable conditions on 2 March 1994 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had served a total of 1 year, 5 months, and 2 days of active service with 120 days of lost time due to AWOL. 7. Item 25 (Separation Authority) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "Army Regulation 635-200, chapter 10." Item 26 (Separation Code) of his DD Form 214 shows the entry "KFS." Item 27 (Reentry Code) on his DD Form 214 shows the entry "RE-3." Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "in lieu of trial by court-martial." 8. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 9. The applicant provided one character reference letter from his employer. He attests that the applicant carries himself with professionalism and pride and that he is a "model member" and "one of the best laborers." He also indicates that the applicant is currently laid off due to the current state of the economy. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 11. 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. 12. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 13. Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code "KFS" is "in lieu of trial by court-martial" and the regulatory authority is Army Regulation 635-200, chapter 10. 14. Army Regulation 635-200 states, in pertinent part, 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 (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. a. RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable. b. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated. 15. The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that Soldiers given a separation program designator of "KFS" would be given an RE code of 3. DISCUSSION AND CONCLUSIONS: 1. Age is not a sufficiently mitigating factor. The applicant was 18 years old when he enlisted and he completed his training. 2. The character reference letter submitted on behalf of the applicant fails to show that his discharge or RE code were unjust and should be changed. 3. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so. 4. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 5. The applicant's record of service included 120 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge. 6. The applicant's RE code was administratively correct and in conformance with applicable regulations at the time of his separation. 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) AR20090016753 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090016753 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1