RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050015963


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 his Under Other Than Honorable Conditions
(UOTHC) discharge be upgraded.

2.  The applicant states that his reentry eligibility (RE) code indicates
that he wasn’t qualified but that the reasons could be waived.  He wants
his discharge reasons waived and an honorable discharge issued.

3.  The applicant provides no supporting documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 January 1983, the date of his discharge.  The
application submitted in this case is dated 14 June 2004 but was not
received until 7 November 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 record shows the applicant entered active duty on 11 September
1979, completed training, and was awarded the military occupational
specialty (MOS) 63B (Light Wheel Vehicle and Power Generation Mechanic).

4.  On 14 July 1980 the applicant received nonjudicial punishment under
Article 15, Uniform Code of Military Justice by reporting for morning
muster unshaven.

5.  The applicant was absent without leave (AWOL) from 21 through
22 September 1982 and placed in military confinement on 23 September 1982.


6.  A 1 November 1982 Department of the Army (DA) Form 268 (Report for
Suspension of Favorable Personnel Action) indicates the applicant was
released from military confinement in Washington, D. C. on 16 October 1982,
where he was being held for contributing to the delinquency of a minor, to
return to Fort Bragg, North Carolina.  When the applicant did not report to
Fort Bragg, his status was changed to AWOL effective 20 October 1982.

7.  The record contains no information as to what, if any, action was taken
related to the 22 - 23 September 1982 AWOL period or the charge of
contributing to the delinquency of a minor for which he had been placed in
military confinement.

8.  The applicant was AWOL from 20 October 1982 through 30 November 1982
when he was apprehended by civilian authorities and returned to military
control. On 18 November 1982 charges were preferred for that offense.

9.  On 13 December 1982, after consulting with counsel and being advised of
his rights and options, the applicant submitted a formal request for
discharge for the good of the service in lieu of trial by court-martial
under the provisions of Army Regulation 635-200, chapter 10.  He
acknowledged he had been advised of and understood his rights under the
Uniform Code of Military Justice, that he could be discharged under other
than honorable conditions which would deprive him of many or all of his
benefits as a veteran, that he could expect to experience substantial
prejudice in civilian life if he received this type of discharge, and that
there is no automatic upgrading or review of a less than honorable
discharge.

10.  The discharge authority approved the request and directed that the
applicant be reduced to the lowest enlisted grade and separated with an
Under Other Than Conditions Discharge (UOTHC).

11.  On 24 January 1983 the applicant was discharged under the provisions
of Army Regulation 635-200, chapter 10 for the good of the service in lieu
of trial by court-martial with an UOTHC.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) lists his SPD (Separation Program
Designator) code as JFS and his reentry code as RE-3, 3B & 3C.

12.  There is no indication the applicant applied to the Army Discharge
Review Board within its 15-year filing statute of limitations.

13.  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.

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets
forth the maximum punishments for offenses chargeable under the UCMJ.  A
punitive discharge is authorized for offenses under Article 86, for periods
of AWOL in excess of 30 days

15.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in
effect, provided 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 stated that:

      a.   the SPD code of JFS is to be used for involuntary (emphasis
added) discharge for conduct triable by court-martial;

      b.  the SPD code of KFS is the appropriate code to assign to Soldiers
voluntarily (emphasis added) separated under the provisions of Army
Regulation 635-200, chapter 10 for the good of the service in lieu of trial
by court-martial; and

      c.  the SPD/RE Code Cross Reference Table included in the regulation
establishes RE-3 as the proper code to assign members separated with this
SPD code of JFS.

16.  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 as follows:

      a.  RE–3 applies to persons not qualified for continued Army service,
but the disqualification is waivable.  Certain persons who have received
nonjudical punishment are so disqualified, as are persons with bars to
reenlistment, and those discharged under the provisions of Chapter 9, 10,
13, 14, and 16 of Army Regulation 635-200;

      b.  RE–3B indicates that a person had lost time during his or her
last enlistment; and

      c.  RE-3C  applies to Soldiers separated prior to the effective date
of this regulation, but did not meet reentry criteria at the time of
separation.

DISCUSSION AND CONCLUSIONS:

1.  The RE code relates to a Soldier’s ability to reenter active military
service.  It is generated by the reason a Soldier was separated and has no
bearing on any consideration of upgrading the character of a discharge.

2.  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.

3.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 January 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 23 January 1986.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__EEM__  ____JCR_ ___JTM__  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 T. Meixell______
                                            CHAIRPERSON
                                    INDEX

|CASE ID                 |AR20050015963                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144 upgrade                             |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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