RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060000241


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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 reentry (RE) and Separation
Program Designator (SPD) codes be changed.

2.  The applicant states, in effect, the characterization of his discharge
was upgraded by the Army Discharge Review Board (ADRB) in 1991, and he
believes this should have resulted in a change to his RE and SPD codes.  He
states that he needs these codes changed so that he may reenlist.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 29 September 1988.  The application submitted in this case
was received on 5 January 2006.

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 Regular Army and
entered active duty on 6 September 1984.  He was trained in, awarded, and
served in military occupational specialty (MOS) 11H (Anti-Armor Weapons
Infantryman), and the highest rank he attained while serving on active duty
was specialist four (SP4).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, the applicant earned the Army Good Conduct
Medal, Army Service Ribbon, Overseas Service Ribbon, Sharpshooter
Marksmanship Qualification Badge with Grenade Bar, Marksman Marksmanship
Qualification Badge with Rifle and Missile Bars, and Parachutist Badge.

5.  On 29 August 1988, Charge Sheet (DD Form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 112a of
the Uniform Code of Military Justice (UCMJ), by wrongfully using cocaine.

6.  On 1 September 1988, 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 her.  Subsequent to receiving this legal counsel, the
applicant voluntarily requested discharge for the good of the service, in
lieu of trial by court-martial.

7.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges against him, or of a lesser included offense(s), that also
authorized the imposition of a bad conduct or dishonorable discharge.  He
further acknowledged that 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 14 September 1988, separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions (UOTHC) discharge and be reduced to the lowest
enlisted grade.  On
29 September 1988, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant at time shows he was separated
under the provisions of chapter 10, Army Regulation 635-200, for the good
of the service in lieu of trial by court-martial, after completing a total
of 4 years and
24 days of creditable active military service.  It also shows that based on
the authority and reason for his separation, he was assigned a SPD code of
KFS, and an RE code of RE-3.

10.  On 20 May 1991, the ADRB after carefully considering the applicant's
entire record of service, determined that based on his having over 3 years
of honorable service, and because his discharge was based on only on
incident, the UOTHC characterization of his discharge was too harsh, and it
voted to upgrade it to a general, under honorable conditions discharge
(GD).  However, the ADRB determined that the authority and reason for his
separation were both proper and equitable, and it voted not to change them.


11.  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 UOTHC is normally considered appropriate.

12.  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.  RE-3 applies to persons who are disqualified
for continued Army service; however, the disqualification is waivable.

13.  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.  At the time of
the applicant's separation, it stated, in pertinent part, that the SPD code
of KFS was 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 trial by
court-martial.  The SPD/RE Code Cross Reference Table in effect at the time
provided for the assignment of RE-3 for members separated with this SPD
code.
14.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD and RE-3 codes should have been
changed or removed as a result of the ADRB's upgrade of the
characterization of his service was carefully considered.  However, there
is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation and that his
SPD and RE codes were properly assigned based on the authority and reason
for his separation.  All requirements of law and regulation were met, and
the rights of the applicant were fully protected throughout the separation
process.

3.  Although the ADRB voted to upgrade the applicant’s discharge to
honorable for equity reasons, it concluded that the authority and reason
for his separation was proper and equitable, and it voted not to change it.
 As a result, the ADRB action clearly does not support a change to the SPD
or RE-3 codes that were properly assigned to the applicant upon his
separation.

4.  By regulation, the RE-3 code assigned the applicant was the 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-
martial.  As a result, the RE-3 code assigned the applicant was and still
is appropriate based on the authority and reason for her 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.

6.  The applicant is advised that RE-3 applies to persons who are not
considered fully qualified for reentry or continuous service; however, it
does allow for a waiver of the disqualification.  Therefore, if he desires
to reenlist, he should contact a local recruiter to determine his
eligibility.  Those individuals can best advise a former service member as
to the needs of the Army at the time, and are required to process waivers
of RE codes.

7.  The record shows the applicant exhausted his administrative remedies
when his case was last reviewed by the ADRB on 20 May 1991.  As a result,
the time for him to file a request for correction of any error or injustice
to this Board expired on 19 May 1994.  He failed to 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

___SLP _  __RML __  __JGH __  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.




                                  _____Shirley L. Powell ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000241                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1988/09/29                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of C-M                          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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