PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 August 2001
         DOCKET NUMBER: AR2001057470


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

Mr. Carl W. S. Chun		Director
Mr. Michael L. Engle		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. Richard T. Dunbar		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his under other than honorable conditions discharge be upgraded; and that his reentry code, separation code, and rank be corrected accordingly.

3. The applicant states, in effect, that he injured his back and subsequently had two surgeries. He further contends that his wife was undergoing treatment for a Bipolar Disorder. As a consequence of the resulting stress, he made a rash decision to go absent without leave (AWOL). He states that he was never counseled for misconduct and never received nonjudicial punishment (NJP) under the provisions of the Uniform Code of Military Justice (UCMJ). He now realizes that he could have helped his wife and marriage without ending his military career if he had only stopped, thought, and asked for help. He indicates that there are errors or injustice involving an invalid reenlistment and with his medical condition and the medical condition of his spouse.

4. The applicant’s military records show that he enlisted in the Army on 27 July 1995 for 4 years. He completed his initial training and was assigned for duty in military occupational specialty (MOS) 11M (automatic rifleman). He attained the rank and pay grade of specialist, E-4 on 1 September 1997. On 31 August 1998, he reenlisted for an additional 4 years.

5. On 22 October 1998, the applicant received a permanent physical profile providing him with a “4” in his lower extremities. Army Regulation 611-201, in effect at the time, requires a physical profile no lower than “1” in this category, for his MOS.

6. On 27 October 1998, Permanent Orders 300-4, were published awarding the Good Conduct Medal to the applicant for the period from 27 July 1995 to 26 July 1998.

7. The applicant went AWOL from 21 December 1998 to 23 January 1999. He was dropped from the rolls effective 20 January 1999. The applicant returned to military control on 24 January 1999, and was subsequently charged with violation of the UCMJ, Article 86, for AWOL (34 days).

8. On 26 January 1999, the applicant voluntarily requested to be discharged from the Army for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

9. The applicant consulted with counsel, acknowledged the possible effects of receiving an under other than honorable discharge, and elected not to make a statement in his own behalf.

10. On 20 September 1999, the applicant’s commander forwarded his request to the approving authority for appropriate action. His response is not in the record.

11. On 26 January 2000, Orders were published reducing the applicant to the rank and pay grade of private, E-1, effective 4 October 1999, in accordance with the provisions of Army Regulation 635-200, chapter 10 and AR 600-8-19, paragraph 6-1e.

12. On 7 June 2000, the applicant was discharged under other than honorable conditions. He completed 4 years, 9 months and 7 days of creditable active service and had 34 days lost time due to AWOL. He had also been retained in the service 283 days for the convenience of the government, and had 498 days of excess leave.

13. The applicant’s Certificate of Release or Discharge from Active Duty
(DD Form 214) shows he was awarded the Army Commendation Medal, the Army Achievement Medal, the National Defense Service Medal, the North Atlantic Treaty Medal, and qualification badges to include the Expert Infantryman Badge.

14. His DD Form 214 further shows in Remarks that he did not complete his first full term of service. The narrative reason for separation is in lieu of trial by court-martial. The separation code is KFS. The reentry code is 3.

15. On 30 April 2001, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade to his discharge. On 20 July 2001, the ADRB determined that his discharge was proper, but that the characterization was inequitable. It unanimously voted to upgrade his discharge to under honorable conditions and to restore his rank and pay grade to specialist, E-4. The ADRB did not change the reason for separation or the reentry code. These ADRB directed actions remain to be implemented.

16. Army Regulation 601-210 prescribes 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 and includes a list of armed forces RE Codes including RA RE codes. RE-3 applies to persons with a waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

17. 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 SPD codes to be entered on the DD Form
214. The SPD code of KFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for soldiers separating under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE-3 as the proper reentry code to assign to soldiers separated for this reason.

18. 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate.

CONCLUSIONS:

1. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress.

2. The type of discharge directed and the reason therefor were appropriate considering all the facts of the case.

3. Although the corrections have yet to be implemented, the ADRB upgraded the characterization to under honorable conditions and restored his rank and pay grade. This Board finds no supporting evidence of record, and the applicant has not presented any convincing argument to warrant a further upgrade of his discharge.

4. The reason for separation and the corresponding SPD and RE codes are correctly applied.

5. The Board notes the applicant’s physical profile and the fact that he no longer qualified to hold his MOS 11M. However, there is no substantiating evidence of record, nor has he provided such evidence, to convince the Board that he should have been discharged for medical reasons.

6. The available evidence is insufficient to determine the validity of his 1998 reenlistment; and therefore, the Board presumes that what the Army did was correct. However, the record does show that he completed more than 4 years of creditable active service and is entitled to have his record show that he did complete his first full term of active service.

7. The applicant was awarded the GCM and should have his records corrected to show this award.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case, particularly the DD Form 214 of the individual concerned, be corrected to show he earned the Good Conduct Medal for the period from 27 July 1995 to 26 July 1998 and by entering in block 18 (Remarks) the statement “SOLDIER COMPLETED FIRST FULL TERM OF SERVICE”.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__JNS___ __DPH__ __RTD__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____John N. Slone______
                  CHAIRPERSON

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INDEX

CASE ID	AR2001057470
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/28
TYPE OF DISCHARGE	Uothc
DATE OF DISCHARGE	20000607
DISCHARGE AUTHORITY	Ar 635-200, chapter 10
DISCHARGE REASON	In lieu of trial by CM
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	A70.00
2.
3.
4.
5.
6.