RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070011875 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree

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 an upgrade of his discharge and correction of his reentry code (RE Code).

2.  The applicant states that he wishes to receive the best discharge upgrade possible.  He further states that he can't remember a lot of things that happened during his military service since his motorcycle accident and that he wishes to go into old age as an honorable man and a good citizen.  He concludes that he has worked hard all his life to prove to his family and friends that he is an honorable person. 

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 January 1973.

	b.  Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 10 December 2006.

	c.  Self-authored statement, dated 21 July 2007.

	d.  Character reference statement, dated 20 January 2007.

	e.  Standard Form (SF) 88 (Report of Medical Examination), dated 8 December 1972 and 14 March 1972.

	f.  SF 93 (Report of Medical History), dated 8 December 1972 and 14 March 1972.

	g.  SF 600 (Chronological Record of Medical Care), dated 13 April 1972 and 27 March 1972.

	h.  DA Form 3349 (Physical Profile Record), dated 19 May 1972.

	i.  SF 601 (Immunization Record), dated 22 March 1972.

	j.  Undated SF 603 (Dental Record).



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 records show that he enlisted in the Regular Army on 20 March 1972 for a period of 3 years.  He completed basic combat training at Fort Leonard Wood, Missouri.  The highest rank he attained during his military service was private/E-1.  His records further show that he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and Grenade Bar.  The applicant's records do not show any significant acts of valor during his military service.

3.  The applicant's records further show that, while attending advanced individual training at Fort Riley, Kansas, he was reported absent without leave (AWOL) on 26 June 1972 and was subsequently dropped from the rolls (DFR) on 26 July 1972.  He remained in DFR status until 6 December 1972 when he was apprehended and returned to military control.

4.  On 13 December 1972, Court-Martial charges were preferred against the applicant for being AWOL during the period on or about 26 June 1972 until on or about 7 December 1972.

5.  On 14 December 1972, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf.

7.  On 14 December 1972, the applicant's immediate commander recommended approval of the request for discharge.  The immediate commander remarked that "his personal evaluation of this applicant is that he will never be a satisfactory Soldier and that retention would serve no useful purpose."  He further recommended an undesirable discharge.

8.  On 14 December 1972, the applicant's intermediate authority recommended approval of the request for discharge.  He further stated that the applicant's military records indicated that retention was neither practical nor desirable, and recommended an undesirable discharge.

9.  On 19 December 1972, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  

10.  On 26 December 1972, the applicant was reported AWOL again.  He returned to military control on 2 January 1973.  Upon return on that date, he was informed, by memorandum, that he was discharged from the Army under the provisions of chapter 10, Army Regulation 635-200 and that the actual notice of discharge was not given because, at the time of discharge, he was in AWOL status.

11.  The DD Form 214 the applicant was issued at the time shows that he was discharged effective 2 January 1972 under conditions other than honorable in accordance with chapter 10 of Army regulation 635-200.  This form also shows that he completed 3 month and 21 days of creditable military service and had 172 days of lost time due to AWOL. 

12.  Item 15 (Reenlistment Code) of the applicant's DD Form 214 shows the entries "RE-1B", "RE-3" and "RE-3B."


13.  In a self-authored statement, dated 21 July 2007, the applicant states that he is requesting an upgrade of his discharge that would qualify him for VA benefits.

14.  In a character statement, dated 20 January 2007, the applicant's long-time friend describes how the drill sergeants mistreated the applicant during his training despite his foot injury.  The friend believes that the applicant was picked on, yelled at, taunted, and harassed by his drill sergeants.  He further adds that the only reason the applicant went AWOL was because he shot at or near his drill instructors while at the rifle range and was threatened with Court-Martial charges by his drill sergeants. 

15.  The applicant submitted a copy of his reports of medical examinations, reports of medical history, chronological record of medical care, immunization record, and dental records.

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

17.  Army Regulation 635-200 (Personnel Separations) 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.

18.  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.

19.  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.

20.  Army Regulation 635-200, in pertinent parts, states 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 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Interim Change 12 of this regulation (applicable at the time of the applicant's discharge) prescribed basic eligibility for prior service applicants for enlistment.  Table A-2 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes):

	a.  RE–1B applicable to those individuals who were fully qualified for reenlistment, except that they had not been tested to verify their primary MOS during their current term of service; fully qualified for second or subsequent reenlistment;

		b.  RE-3 applied to those individuals who were not qualified for reenlistment, but their disqualification was waiverable; and 

		c.  RE-3B applied to those individuals who had time lost during their last period of service.  They were considered ineligible for enlistment unless a waiver was granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his RE-code should be changed.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he was charged with being AWOL.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  Evidence of record confirms that the applicant’s RE codes were assigned based on the fact that he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trail by court-martial, due to AWOL.  The applicant's RE-codes associated with this type of discharge are RE-3 and 3B.  As such, RE-1B is not applicable to this type of discharge.  Therefore, the applicant is entitled to correction of his records to show only RE-3 and 3B. 

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__cg____  __jrs___  __qas___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry "RE-1B" from Item 15 (Reenlistment Code) of the applicant's DD Form 214, dated 2 January 1973, and showing RE-3 and 3B.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his discharge.




							Curtis Greenway
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070011875
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE
(UOTHC)
DATE OF DISCHARGE
19730102
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
100.0300
2.
144.0000
3.

4.

5.

6.