RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050004925


      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. Antoinette Farley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 that the characterization of his discharge be
changed from uncharacterized to honorable.

2.  The applicant, states that he was told he would receive an honorable
discharge because he was racially harassed and threatened by his senior
drill instructor during advanced individual training (AIT).  He continues
that he feared for his life and, due to the harassment and threats, he went
absent without leave (AWOL) and destroyed what was a "VERY" promising
military career.  He adds he was a platoon leader in basic training and due
to his exemplary performance he was promoted to private/pay grade E-2 at
the end of basic training.  He states he was not given the opportunity to
address his discharge.

3.  The applicant provides a self authored letter, dated 22 March 2005, and
a copy of his DD Form 214 in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 March 1989, the date of his separation.  The application
submitted in this case is dated 23 March 2005.

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 service records show that he initially enlisted in the
Regular Army on 5 May 1988.  He completed basic combat training and entered
advanced individual training (AIT).  His record shows he did not complete
AIT and was not awarded a military occupational specialty.

4.  The applicant's military service record contains a DA Form 4187, dated
11 October 1988, filed by Company A, United States Army Personnel Control
Facility, Fort Dix, New Jersey.  This form shows that the applicant
surrendered to military authorities and was returned to military control on
10 October 1988.

5.  The applicant's military service record contains a prepared Charge
Sheet (DD Form 458), dated 17 October 1988, filed by Company A, United
States Army Personnel Control Facility, U.S. Training Center and Fort Dix,
New Jersey, which preferred court-martial charges against the applicant for
violating Article 86 of the Uniform Code of Military Justice (UCMJ) by
being AWOL 7 August 1988 through 10 October 1988.

6.  In his request for discharge, the applicant 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.  He also acknowledged that he may expect
to encounter substantial prejudice in civilian life because of an under
other than honorable discharge.

7.  The applicant also completed a Fort Dix Control Facility (FDCF) Form
691 (Personnel Control Facility Information Sheet) undated, which is used
by interviewing officers to determine action to be taken on AWOL/DFR
returnees.  This form shows the applicant acknowledged he had been
counseled, he did not want a physical, and he did not want to stay in the
service.

8.  The applicant also completed a FDCF Form 691A (Personnel Control
Facility Interview Sheet) on 13 October 1988, outlining his reasons for
going AWOL.  The applicant, states that he encountered prejudice.  He
further states he was confronted with fake charges, and verbally threatened
for a chance to become a warrant officer.  He adds he was railroaded into
doing work details and punished for things he never did.  He also
acknowledged that he tried to solve his problems by talking with the
intermediate commander.  He states he was never given an appointment and
ignored.  The FDCF Form 691A, shows the recommended action was to separate
the applicant under the provisions of chapter 10 of Army Regulation 635-
200, and the type of discharge would be an entry level separation.






9.  Evidence of record shows that on 11 October 1988, the applicant was
placed in an indefinite excess leave status to go home awaiting separation
processing.

10.  On 8 February 1989, the separation authority approved the applicant's
request for an entry level separation under the provision of chapter 10 of
Army Regulation 635-200, with his character of service as uncharacterized.

11.  On 27 February 1989, U.S. Army Training Center and Fort Dix, New
Jersey, issued Orders Number 058-93 to reduce the applicant's rank from
private/pay grade E-2 to private/pay grade E-1, effective on 8 February
1989.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was separated on 14 March 1989, under the
provisions of chapter 10 of Army Regulation 635-200, for the good of the
service in lieu of trial by court-martial with the character of service of
uncharacterized.  The applicant's DD Form 214 also shows that he had served
8 months and 6 days of active service.  He had 1 month and 15 days of
creditable active service, 95 days of lost time due to AWOL and 147 days of
excess leave status. His DD Form 214 shows an RE code of RE-3 and a
Separation Program Designator (SPD) code of “KFS” which indicates voluntary
separation in lieu of trial by court-martial.

13.  The applicant submitted a self-authored statement in which he
essentially details his previous allegations of receiving an unjust
discharge.  He continues by also outlining his military career, his
eligibility to reenter the U.S. Army and specific reasons for earning an
honorable discharge.

14.  On 24 April 1990, the Army Discharge Review Board (ADRB) denied the
applicant's request for re-characterization of his discharge.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separation) sets forth the basic authority for the separation of enlisted
personnel.  Chapter 10 of this regulation provides, in 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 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.



16.  Army Regulation 635-200, 10-8c, also states in pertinent part that if
a Soldier has not completed more than 180 days of creditable continuous
active duty prior to the initiation of separation action the
characterization of service under other than honorable conditions for a
Soldier in entry-level status is not warranted, and uncharacterized will be
used.

17.  Pertinent Army regulations provide 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
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment.  That chapter includes a list of armed forces RE
codes, including RA RE codes.  The regulation states that
RE–3 applies to persons not qualified for continued Army service but the
disqualification is waivable.

18.  Table 2-3 (Separation Program Designator (SPD)/RE Code Cross Reference
Table) of Army Regulation 635-5-1 (SPD Codes) establishes RE code 3 as the
proper reentry code to assign to soldiers when discharged.

19.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

20.  Army Regulation 635-200, paragraph 3-7, 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.

21.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on the date of his separation on 14 March
1989; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 13 March 1992.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or evidence to show that it would be
in the interest of justice to excuse failure to timely file in this case.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show
that he was honorably discharged, because he was racially harassed,
threatened and feared for his life.

2.  The evidence of record shows in this case he was separated under the
provisions of chapter 10 of Army Regulation 635-200 for the good of the
service-in lieu of trial by court-martial with uncharacterized service.

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, he voluntarily requested
discharge from the Army in lieu of trial by court-martial.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of service.
Therefore, the applicant's contention is not consistent with chapter 10
separation procedures and is not supported by the evidence of record in
this case.

4.  The applicant's record of service shows charges were preferred against
the applicant for being AWOL for 95 days.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  The applicant's excessive lost time with only one
month and 15 days of creditable service also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

6.  Records show the applicant was properly and equitably discharged in
accordance with the regulations in effect at the time.  Lacking evidence to
the contrary, it is determined that all requirements of law and regulations
were met and the rights of the applicant were fully protected throughout
the separation process.

7.  Accordingly, the type of discharge directed and the reason for
discharge are appropriate considering all the facts of the case.




8.  The applicant did not complete 180 days of continuous active service
prior to his separation from active duty; therefore, received an
uncharacterized discharge.

9.  Records show the applicant's command received his allegation of
harassment, and discrimination.  However, his record only shows the command
recommended he be separated under the provisions of chapter 10 Army
Regulation 635-200, and the type of discharge would be an Entry level
separation.  The applicant’s allegations are noted.  However, there is no
substantiating evidence that the events occurred as he contends.  Further,
these factors do not outweigh the serious nature of the applicant's
offenses and, therefore, are not sufficiently mitigating to warrant relief.

10.  There is no evidence and the applicant has failed to provide evidence
which shows that the "uncharacterized" discharge is in error or otherwise
contrary to law or regulations.  Therefore, there is no basis to change the
applicant's character of service as requested.

11.  The evidence of record shows the applicant was separated with a
separation code of "KFS" and was assigned an RE code of RE-3 in accordance
with the governing regulation in effect at the time.

12.  There is no evidence of record which shows the reentry code issued to
him was in error or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MJF__  __LGH___  __JS     ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.







            _John N. Slone____
                    CHAIRPERSON





                                    INDEX

|CASE ID                 |AR20050004925                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UCHAR                                   |
|DATE OF DISCHARGE       |1989,03,14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Ch10                                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Director                                |
|ISSUES         1.       |A144.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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