RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20070000005 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Ronald Weaver

Chairperson

Mr. Jeffrey Redmann

Member

Mr. David Tucker

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 discharge under other than honorable conditions be upgraded and that his reenlistment (RE) code be changed. 

2.  The applicant states, in effect, that he attributes his discharge to an immature judgment call made hastily in his youth and not due to any form of disloyalty to his country.  He claims that he went absent without leave (AWOL) because the mother of his daughter told him his daughter was gravely ill.  When his request for leave was denied by his platoon sergeant he went AWOL.  He contends that when he arrived at the home of his daughter he found out she was not ill and that he was told he was not the child’s father.  At that point, he turned himself in.  He states his military lawyer told him that since he admitted his guilt for leaving he would be found guilty at a court-martial and be sentenced to a dishonorable discharge and one year in prison.    

3.  The applicant provides a copy of his DA Form 2-1 (Personnel Qualification Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 16 March 1989.  The application submitted in this case is dated 1 December 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 was born on 31 August 1964.  He enlisted on 5 August 1987 for a period of 3 years.  He successfully completed basic training and advanced individual training in military occupational specialty 16S (man portable air defense system).

4.  Records show the applicant was AWOL from 10 February 1989 to 
28 February 1989.

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 16 March 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He had served a total of 1 year, 6 months, and 23 days of creditable active service with 19 days of lost time due to AWOL.  Item 
27 (Reenlistment Code) on his DD Form 214 shows the entry, “RE-3, 3B &3C.”

6.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

7.  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.

8.  Army Regulation 635-200, paragraph 3-7a, 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.  

9.  Army Regulation 635-200, paragraph 3-7b, 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.

10.  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 processing into the Regular Army and the U.S. 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.
11.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

12.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

13.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 1989, shows that Soldiers given an SPD [Separation Program Designator] of "KFS” will be given an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was almost 23 years old when he enlisted and he successfully completed basic training and advanced individual training.  Also, it appears he completed 18 months of service prior to going AWOL.  

2.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures prior to going AWOL.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

4.  The applicant’s RE code was administratively correct and in conformance with applicable regulations at the time of his separation.  

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 16 March 1989; therefore, the time for the applicant to file a request for correction of any injustice expired on 15 March 1992.  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

RW____  __JR____  __DT____  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.


__Ronald Weaver_____
          CHAIRPERSON




INDEX

CASE ID
AR20070000005
SUFFIX

RECON

DATE BOARDED
20070524
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890316
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
100.0300
3.

4.

5.

6.