RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 November 2007
	DOCKET NUMBER:  AR20070007132 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Barbara J. Ellis

Chairperson

Mr. Jose A. Martinez 

Member

Mr. Chester A. Damian

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) Code of "3, 3B, and 3C" be change to a more favorable code and that his under other than honorable conditions (UOTHC) discharge be upgraded.
 
2.  The applicant states, in effect, that he would like his RE Codes changed by means of a waiver.  He was told that after 5 years his discharge would be changed automatically to honorable with entitlement to all benefits.
 
3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 he enlisted in the Regular Army on 12 February 1985, for 3 years, with an established expiration of term of service (ETS) date of 11 February 1988.  He successfully completed basic combat training and advanced individual training at Fort Sill, Oklahoma.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 13B, Cannon Crewman.  

3.  The applicant was advanced to pay grade E-4 on 1 May 1986.  He served until he was honorably discharged on 18 October 1987, for immediate reenlistment.  He reenlisted on 19 October 1987.

4.  Charges were preferred against the applicant on 12 April 1989, for being AWOL (absent without leave) from 20 September 1988 to 9 April 1989.  


5.  On 12 April 1989, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an under other than honorable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf. 

6.  On 19 May 1989, the separation authority approved the applicant's request for discharge under other then honorable conditions and directed that he be reduced to the lowest enlisted grade. 

7.  The applicant was discharged on 6 July 1989, in the pay grade of E-1.  He had a total of 3 years, 10 months, and 6 days of creditable service and 201 days of lost time due to AWOL.

8.  Item 26 (Separation Code), of the applicant's DD Form 214, shows the entry "KFS."  Item 27 (Reentry Code), of the applicant’s DD Form 214, shows the entry "3, 3B, and 3C" and the narrative reason for separation is, "for the good of the service - in lieu of trial by court-martial."

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

10.  Army Regulation 635-200 sets forth the basic authority for 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 under other than honorable conditions is normally considered appropriate.

11.  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.



12.  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, 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.

13.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry 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 reentry codes, including RA RE codes.

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE Code and states that more than one RE Code could apply.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KFS" has a corresponding RE code of "3."

15.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable for reenlistment after a 2-year period has elapsed since discharge.  It also applies to persons not qualified for continued 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 trial by court-martial.

16.  RE-3B applies to Soldiers who have lost time during their last period of service.  Soldiers are ineligible for enlistment unless a waiver is granted

17.  RE-3C applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements of AR 601-280, chapter 2, or who have been denied reenlistment and who are ineligible for enlistment unless a waiver is granted.




18.  Army Regulation R 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation code to be used for these stated reasons.  The regulation shows that the separation code "KFS", as shown on the 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 AR 635-200, Chapter 10.

19.  Title 38 of the Code of Federal Regulations, Chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the following conditions are met:…   (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge on 6 July 1989 was accomplished in compliance with applicable regulations.

2.  The evidence shows the applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial.  

3.  There is no evidence in the applicant's records, and the applicant has provided none, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  The separation code of "KFS" and RE Code of "3, 3B, and 3C" were entered in their appropriate spaces on the DD Form 214 and the narrative reason for his discharge was shown to be, "in lieu of trial by court-martial."

5.  The applicant's separation code of "KFS" is consistent with the basis for his separation and the RE Code applied to his DD Form 214 is consistent with the separation code; therefore, the applicant is not entitled to a change of his separation code or his RE Code. 

6.  The applicant contends that he would like a change in his RE Code by means of waiver.  The applicant was eligible to apply for a waiver 2 years after his discharge and should have contacted the nearest recruiter to process his request through channels.  

7.  The applicant alleges that he was told that after 5 years his discharge would change automatically to honorable with entitlement to all benefits.  There is no evidence, and the applicant has provided none, to support his allegation.

8.  In view of the circumstances in this case, the applicant is not entitled to a change of his RE Code of "3, 3b, and 3C" to a more favorable code.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  

9.  Since the applicant would have been eligible for an honorable discharge on   18 October 1987, it appears that the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__BJE___  __JM____  ___CD__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____Barbara J. Ellis______
          CHAIRPERSON
INDEX

CASE ID
AR20070007132
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071108
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890706
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.