RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	16 October 2007  
	DOCKET NUMBER:  AR20070005517 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Phyllis B. Mackey 

Analyst

The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. James Anderholm

Member

Mr. Joe Schroeder

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 (which was submitted by a member of Congress), in effect, that his discharge be upgraded so he may reenlist.

2.  The applicant states, in effect, that he did not understand what he was agreeing to at the time.  He states that he was very young and just agreed with what he was told to do.

3.  The applicant provides a letter of explanation for his request; a copy of his 
DD Form 214, dated 24 March 1988 and a copy of a DA Form 4856-R, General Counseling Form, dated 6 November 1987, in support of his request.  A Privacy Act release form was also submitted. 

CONSIDERATION OF EVIDENCE: 

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s record shows that on 6 February 1986, at age 19, he enlisted in the Regular Army for 4 years.  The applicant successfully completed basic reconnaissance training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 19D, Cavalry Scout.  He was advanced to pay grade E-3 on 15 May 1986. 

3.  On 3 June 1987, the applicant received an Article 15, under the Uniform Code of Military Justice (UCMJ), at Fort Bliss, Texas.  On or about 20 May 1987, “he did without proper authority, willfully suffer blank .50 caliber ammunition and a knife, military property of the United States, to be wrongfully disposed of by having them in his wall locker.”   The imposed punishment included reduction to pay grade E-2 (suspended for 180 days), a forfeiture of $110.00, and 14 days of extra duty, and restriction.  
4.  On 2 September 1987, the applicant was convicted by Summary Court-Martial that convened at Headquarters, 1st Squadron, 3rd Armored Calvary Regiment, Fort Bliss, Texas, of absenting himself, without authority, from his unit, from
7 July 1987 until 22 July 1987.  He was sentenced to reduction to Private and to confinement for 10 days.  

5.  Charges were preferred against the applicant on 22 February 1988, for wrongfully using an illegal controlled substance, between 2 September 1987 and 2 October 1987.  On 2 March 1988, his charges were referred to a special convening court-martial authority which was empowered to adjudge a discharge characterized as under other than honorable conditions.

6.  On 4 March 1988, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

7.  Prior to completing his request, for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 4 March 1988 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

8.  The applicant stated that he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all 
benefits, administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  The commanders, (company, battalion, and brigade) unanimously recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10.  Both the company and battalion commanders recommended that the applicant be discharged expeditiously under Chapter 10 for the good of the service based on the fact that the applicant had shown a consistent record of misconduct to include a Summary-Court Martial conviction for being AWOL and use of a controlled substance.  The acting brigade commander stated that his recommendation for a UOTHC discharge was due to the fact that the applicant indicated through his actions, an inability to conform to military standards.  The commander felt that the applicant was incorrigible and an UOTHC discharge was warranted immediately.  

10.  Item 21 (Time Lost), of his DA Form 2-1 (Personnel Qualification Record-Part II), shows that he AWOL from 7 July 1987 to 22 July 1987 (16 days) and he was confined from 2 September 1987 to 9 September 1987 (8 days).  He had a total of 24 days lost time.

11.  On 24 March 1988, the applicant was discharged, in pay grade E-1, under the provisions of Chapter 10 of Army regulation 635-200, for the good of the service-in lieu of court martial.  He had a total of 2 years and 25 days of creditable service and had 24 days of lost time due to being AWOL and in confinement.  

12.  The applicant’s record shows that he received a discharge characterized as UOTHC.  Item 26 (Separation Code) of his DD Form 214 states “JFS” and Item 27 (RE Code) states “RE-4.”

13.  On 3 April 1997, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his UOTHC discharge.  

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation established the policy and prescribes procedures for separating members for the good of the service-in lieu of court martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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 the processing in the Regular Army and the USAR.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter includes a list of Armed Forces reentry codes, including RA RE Codes.

16.  RE-4 applies to persons not qualified for continue service by virtue of being separated from the service with non-waivable disqualifications such as persons discharged for the good of the service in lieu of trail by court-martial.  

17.  Army Regulation 635-5-1 prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators (SPD) to be used for these stated reasons.  The regulation shows that the SPD for "JFS," as shown on applicant’s DD Form 214, is appropriate for discharge when the narrative reason for discharge is “voluntary”, in lieu of trial by court-martial.  The authority for discharge under this separation code is Army Regulation 635-200, Chapter 10. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error or inequity to justify the relief he seeks.

2.   On 2 September 1987, the applicant was convicted by Summary Court-Martial of absenting himself, without authority, from his unit, from 7 July 1987 until 22 July 1987.  He was sentenced to reduction to Private and to confinement for 10 days.  

3.  Charges were preferred against the applicant on 22 February 1988, for wrongfully using an illegal controlled substance, between 2 September 1987 and 2 October 1987.  On 2 March 1988, his charges were referred to a special convening court-martial authority which was empowered to adjudge a discharge characterized as under other than honorable conditions.  A RE Code of “RE-4” was applied to his DD Form 214.  The evidence of record confirms the applicant’s discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons therefore were appropriate considering all the fact of the case.



4.  On the applicant’s release from active duty, his service was characterized as under other than honorable conditions.  This characterization of his service was based on his frequent absences without leave, courts-martial convictions and confinement.

5.  The applicant has provided no evidence of post-service accomplishments or conduct upon which an upgrade of his discharge can be based.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JRS___  ___A____  __SLP__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





_____Shirley L. Powell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070005517
SUFFIX

RECON

DATE BOARDED
20071016
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
880324
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.