RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 July 2005
      DOCKET NUMBER:  AR20040008390


      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             |
|     |Ms. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable
conditions discharge (UOTHC) and reentry (RE) be upgraded.

2.  The applicant states, in effect, that before being absent without leave
(AWOL) for 30 days, he turned himself into a Sergeant First Class (SFC) at
the Hayward recruiting office.  This recruiting sergeant called Fort Lewis,
Washington officials to report him; however, at this time he was arrested
for a traffic violation.  The recruiting sergeant then went to Fort Lewis
to report him, but they had no record of him being AWOL.  He claims to have
waited approximately three weeks, and then found civilian employment.  He
states he has no material motivation for trying to upgrade his discharge,
but wishes to join the Army National Guard to restore his honor.

3.  The applicant provides two self-authored statements in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 April 2000.  The application submitted in this case is
dated
15 October 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s record shows that he enlisted in the Army and entered
active duty on 26 February 1998.  He was trained in, awarded and served in
military occupation specialty (MOS) 11B10 (Infantryman).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes one period of AWOL.

5.  On 23 November 1999, a Charge Sheet (DD Form 458) was prepared
preferring a court-martial charge against the applicant for violating
Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL
from on or about
20 July 1998 through on or about 12 November 1999.

6.  On 24 November 1999, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge and of the procedures and rights that were
available to him.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service in
lieu of trial by court-marital.

7.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and State law.

8.  On 24 November 1999, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
28 April 2000, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he completed 10 months and 3 days of creditable
active military service and that he has accrued 481 days of time lost due
to AWOL.
His RE code is shown as RE 4.

9.  On 8 October 2004, after finding his discharge was proper and equitable
the Army Discharge Review Board (ADRB) denied the applicant’s request for
an upgrade of his discharge.

10.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

11.  Army Regulation 635-5-1 (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, in
pertinent part, that the SPD code of KFS is the appropriate code to assign
to Soldiers separated under the provisions of chapter 10, Army Regulation
635-200, for the good of the service, in lieu of trail by court-martial.
The SPD/RE Code Cross Reference Table included in the regulation
establishes RE-4 as the proper code to assign members separated with this
SPD code.

12.  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 in lieu of trail by court-martial.  An UOTHC discharge is
normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  Based on the 8 October 2004 ADRB consideration of the applicant’s case,
his application to the ABCMR is considered to have been filed within this
Board’s
3-year statute of limitations.

2.  The applicant’s contentions that he turned himself in prior to being
AWOL for 30 days and that he wishes to restore his honor through service in
the Army National Guard, and the supporting statements he submitted were
carefully considered.  However, the factors presented are not sufficiently
mitigating to warrant granting the requested relief.

3.  The evidence of record confirms the applicant was charged with the
commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  The
record further confirms all requirements of law and regulation were met and
that the rights of the applicant were fully protected throughout the
separation process.  Finally, it is concluded that the applicant’s
discharge accurately reflects his overall record of undistinguished
service.

4.  By regulation, the RE-4 code assigned to the applicant was a proper
code to assign members separating under the provisions of chapter 10, Army
Regulation 635-200, for the good of the service, in lieu of trial by court-
marital.  As a result, the RE-4 code was and still is appropriate based on
the authority and reason for his separation.
5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM_  ___ENA_  ___CAK_  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.




                                  _____Melvin H. Meyer   __
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040008390                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005/07/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2000-04-28                              |
|DISCHARGE AUTHORITY     |AR635-200, Ch 10 . . . . .              |
|DISCHARGE REASON        |In lieu of court-marital                |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |100.0300                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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