RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 March 2008
	DOCKET NUMBER:  AR20070017514 


	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:


Ms. Shirley L. Powell

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Edward E. Montgomery

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, with removal of the narrative reason for separation, correction of the separation authority, separation code and reentry code (RE code). 

2.  The applicant states that:

	a.  his separation is unjust because it has impacted his employment opportunities since 1981; and

	b.  he enlisted for and was guaranteed a specific assignment to a unit within the Army’s Training and Doctrine Command (TRADOC), but despite that promise, he was instead assigned to a unit within the Army’s Forces Command (FORSCOM), 

3.  The applicant provides a Table of Contents that includes Tab 1 through Tab 8 in support of his application as follows:

	a.  Tab 1, contains the following evidence:

		1.  Self-authored letter, dated 26 October 2007;

		2.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 June 1981;

		3.  U.S. Army Military Police School, Training Center and Fort McClellan, Fort McClellan, Alabama, Orders 42-151, dated 1 March 1979;
 
		4.  DD Form 1351-2 (Travel Voucher or Subvoucher), dated 2 July 1979; and
		5.  Veterans Administration (VA) Form 29-8286 (Serviceman’s Group Life Insurance Election), dated 2 July 1979.

	b.  Tab 2, contains the following evidence:

		1.  Resume; and

		2.  Training Record.


	c.  Tab 3, contains the following evidence:

		1.  Copy of Social Security Card;

		2.  Copy of Florida Driver License;

		3.  Copy of Palm Beach Shores , Florida, Police Department Card;

		4.  State of Florida, Department of Highway Safety and Motor Vehicles Division of Driver Licenses Transcript of Driver Records, dated 22 March 2006; and

		5.  Ohio Bureau of Motor Vehicles, Abstract Driver Record, dated 2 September 2004.

	d.  Tab 4, contains the following evidence:

		1.  List of personal, neighborhood, and work references; and

		2.  Seventeen (17) Character Reference Letters.

e.  Tab 5, contains the following evidence:

		1.  City of Conneaut Police Department, Ohio, Appointment Letter in the Police Department, dated 14 October 1986;

		2.  Oath of Office, State of Ohio, County of Ashtabula, City of Conneaut, dated 20 October 1986;

		3.  Conneaut Division of Police, Conneaut, Ohio, Letter, dated 17 October 1986, Notification to attend the Basic Police School;

		4.  City of Conneaut Police Department, Ohio, Appointment as a Temporary Police Officer Letter, dated 20 May 1987;

		5.  Oath of Office, State of Ohio, County of Ashtabula, City of Conneaut, dated 2 June 1987;

		6.  City of Conneaut, Letter, dated 26 January 1988, Appointment as Vehicle Repair and Maintenance Officer;

		7.  City of Conneaut Police Department, Ohio, Permanent Appointment Letter in the Police Department, dated 2 June 1988;

		8.  City of Conneaut, Letter, dated 7 October 1988, Appointment as a Volunteer Fire Fighter;

		9.  City of Conneaut, Letter, dated 8 November 1988, Appointment as a Utility Fireman;

		10.  State of Ohio, Department of Liquor Control, Letter of Appreciation, dated 12 January 1989;

		11.  City of Conneaut, Letter, dated 2 January 1992, Appointment as Grants person;

		12.  City of Conneaut, Letter, dated 21 April 1992, Selection as the Conneaut Police Department’s representative for Officer of the Year Award;

		13.  City of Conneaut, Letter, Letter, dated 27 July 1994, Chief of Police Letter of Thanks;

		14.  City of Conneaut, Memorandum, dated 21 December 1994, Chief of Police Letter of thanks;

		15.  City of Conneaut, Letter, dated 6 May 1996, Chief of Police Letter of Commendation;
 
		16.  City of Conneaut, Letter, dated 23 July 1997, Chief of Police, Letter of Commendation;

		17.  City of Conneaut, Letter, dated 8 March 2002, Chief of Police Letter of Thanks;

		18.  Applicant’s Retirement Letter of Intent, dated 4 October 2002; and

		19.  City of Conneaut, Applicant’s Performance Evaluation and/or Review, dated 15 January 2000.


	f.  Tab 6, contains the following evidence:

		1.  Training Certificate, dated 5 July 2005, Patrol Officer;

		2.  Training Certification, dated 5 July 2005, Certification to carry and utilize self defense spray;

		3.  Certificate of Completion, dated 18 April 2006, Emergency Oxygen;

		4.  American Heart Association, Heart-Saver First Aid Card, dated April 2006;

		5.  Royal Palm Improvement Association Performance Evaluation Form, dated 31 December 2005; and

		6.  Two character reference letters.

	g.  Tab 7, contains the following evidence:

		1.  State of Florida, Town of Palm Beach Shores, Florida, Public Employee Oath, dated 22 September 2006;

		2.  Town of Palm Beach Shores, Florida, Certificate of Compliance, dated 1 November 2007, Law Enforcement Officer;

		3.  Town of Palm Beach Shores, Florida, Letter of Commendation, dated 14 February 2007;

		4.  Town of Palm Beach Shores, Florida, Lieutenant’s Memorandum of Commendation, dated 6 March 2007;

		5.  Town of Palm Beach Shores, Florida, Captain’s Memorandum of Commendation, dated 27 March 20075;

		6.  Town of Palm Beach Shores, Florida, Employee Performance Review-Patrolman, dated 28 September 2007; and

		7.  Town of Palm Beach Police Department, Florida, Memorandum of successful completion of probationary period, dated 25 September 2007.


	f.  Tab 8, contains a summary statement. 

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 U.S. Army Reserve (USAR) on 3 January 1979 for a period of 6 years under the Delayed Entry Program (DEP).  He subsequently enlisted in the Regular Army for a period of 3 years on 11 January 1979.  Paragraph 1a of his DA Form 3286-19 (Statement of Enlistment-U.S. Army Station of Choice Enlistment Option) stated "In connection with my enlistment in the Regular Army for United States Station of Choice Enlistment Option, I hereby acknowledge that my enlistment for this option assures me, provided I meet required prerequisites, I will be given an initial assignment to a unit located on Fort Leonard Wood, Missouri, and training in MOS 95B1O."

3.  The applicant's records show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 95B (Military Policeman).  He was subsequently assigned to the 463rd Military Police Company, Fort Leonard Wood, Missouri.  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.  

4.  The applicant's records show that he was awarded the Exert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Pistol Bar.  His records do not show any significant acts of valor during his military service.


5.  On 2 April 1980, the applicant received a letter of reprimand from his immediate commander for his unlawful possession and concealment of sensitive items (3 rounds of .45 caliber ammunition in his first aid pouch).  He acknowledged receipt on 2 April 1980, but did not submit a rebuttal.

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  

7.  The applicant’s DD Form 214 shows that he was discharged on 12 June 1981, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations), with an Under Other Than Honorable Conditions Discharge character of service.  Item 26 (Separation Code) of the DD Form 214 shows the entry “JFS”, Item 27 (Reenlistment Code) shows the entry “RE-3”, and Item 28 (Narrative Reason of Separation) shows the entry “Conduct Triable by Court-Martial.”  The form further shows that the applicant had completed 2 years, 5 months, and 2 days of creditable military service.   

8.  In his self-authored statement, dated 26 October 2007, the applicant asked the Board for compassion and understanding, and the ability to understand the impact of his discharge on his life.  He stated that:

	a. upon enlistment in the Regular Army, he was guaranteed a TRADOC assignment where he could learn the skills to become a law enforcement officer. Instead, he was assigned to a FORSCOM unit.  During a long weekend, he drove to Ohio to see his recruiter regarding the conflict in his assignment; however, he fell asleep at the wheel of his car and injured himself in a one car accident.  He returned to his unit and continued his attempts to change his assignment with no success.  He further adds that he also began to encounter family hardships and stress, compounded by the death of his grandfather and divorce of his parents.  He also states that he made mistakes while stationed at Fort Leonard Wood and was advised by a military counsel to take a chapter 10 discharge and that he took advantage of this opportunity to be discharged to return home, 6 months short of completing his enlistment commitment.  He understood at the time that his under other than honorable conditions discharge would be upgraded to honorable for his time in the service; 

	b.  after discharge, he returned home and pursued his dream of becoming a police officer.  He excelled in training and graduated top of his class and served more than 15 years as a police officer for the Conneaut Police Department in Ohio where he received numerous letters of appreciation, merit, commendation, 


and achievement.  He became certified as an Emergency Medical Technician and licensed as a Firefighter in Ohio.  He further received several letters of support and character reference letters from citizens of the city of Conneaut, Ohio; and

	c.  he moved to Florida and discovered that a lot of emphasis is placed on honorable service and that he has missed out on several professional opportunities as a police officer due to the type of discharge he received.  He concludes his statement with an appeal to upgrade his discharge to honorable and correct his Separation Authority, Separation Code, Reentry Code, and the Narrative Reason for Separation.  

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

10.  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.

11.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JFS" SPD code was the correct code for Soldiers separating in 1981 under chapter 10 of Army Regulation 635-200, in lieu of trial by Court-martial.

12.  Army Regulation 635-200 states, in pertinent part, 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.  Table 3-1 included a list of the Regular Army Reenlistment Eligibility Codes (RE codes).  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; these Soldiers are qualified for enlistment if all other criteria are met.     RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; these Soldiers are ineligible unless a waiver is granted.  

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his Separation Authority, Separation Code, RE code, and Narrative Reason for Separation are unjust and should be corrected.

2.  Evidence of record shows that, upon enlistment in the Regular Army on 11 January 1979, the applicant was guaranteed a station of choice (Fort Leonard Wood, Missouri), not a unit of choice.  Accordingly, upon completion of advanced individual training and award of MOS 95B, the applicant was assigned to a Military Police unit at Fort Leonard Wood, Missouri.

3.  There is no evidence in the available records that shows the applicant was undergoing family problems at the time.  Additionally, there is no evidence that the applicant addressed such problems with his chain of command or through installation support channels. 



4.  The applicant's post service employment as a law enforcement officer, his training and achievements, the various character reference letters, as well as his resume were noted.  However, they are not sufficiently mitigating to grant the requested relief.  

5.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record contains a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was administratively discharged for conduct triable by court-martial under the provisions of chapter 10, Army Regulation (AR) 635-200.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or to a lesser included offense or offenses under the UCMJ.

6.  Evidence of record confirms that the applicant’s SPD and RE codes were assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trail by Court-martial.  The RE code associated with this type of discharge is "RE-3" and the SPD code associated with this type of discharge is "JFS."  Therefore, the applicant received the appropriate RE and SPD codes associated with his discharge.

7.  There is no evidence in the available records nor did the applicant provide documentation to substantiate what he described as being “unjustly discharged." The applicant was discharged in accordance with chapter 10 of AR 635-200, in lieu of trial by Court-martial.  The underlying reason for his discharge was his pending trial by Court-martial.  He chose to request separation instead.  Therefore, the only valid reason for separation permitted under this chapter is "In Lieu of Trial by Court-Martial" or "Conduct Triable By Court-Martial."

8.  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.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement in this case. Therefore, he is not entitled to relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__slp___  __ym____  __eem___  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.



							Shirley L. Powell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.