RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20070019020 


	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.  




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 be upgraded to fully honorable, that the narrative reason for his separation be changed, and that his reentry (RE) code be changed.

2.  The applicant states he was told by a captain who was in charge of the Reception Battalion that he was released by the Army.  Upon being told that he might be absent without leave (AWOL), he turned himself in to the provost marshal at Fort Irwin, CA.  At the time, he did not think of the paperwork; he just wanted to get on with his life.  His other reason for leaving was that he wanted to stay with recruiting duty in Southern California.  He was told by an E-7 that all he had to do was go back to his recruiting battalion and file a DA Form 4187 (Personnel Request) and sign back in there.  He believes that for the most part his records speak for themselves.  Before the incidents for which he was discharged he was an exemplary Soldier and an outstanding citizen.  All he  really wants to do is serve his country again and be what the Army trained him   to be – a leader of Soldiers.  

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the U. S. Air Force Reserve on 30 June 1988.  He enlisted in the Regular Air Force on 1 June 1989 and was honorably released from active duty on 31 May 1993 and transferred to the U. S. Air Force Reserve. He received a DD Form 214 (Certificate of Release or Discharge from Active Duty) for that service.  He enlisted in the Army National Guard on 2 July 1993 and was honorably discharged on 12 October 1993 to enlist in the Regular Army. He received a National Guard Bureau Form 22 (Report of Separation and Record of Service) for that service.

2.  The applicant enlisted in the Regular Army on 13 October 1993.   

3.  Around February 1997, the applicant began to perform duties as a field recruiter.  He was assigned to the U. S. Army Recruiting Battalion Southern California, Mission Viejo, CA around June 1999.  He was promoted to Staff Sergeant, E-6 on 1 July 2000.  On 20 July 2000, he requested permanent change of station (PCS) leave, apparently en route to Fort Campbell, KY, with his last day of leave scheduled to be 20 August 2000.  His PCS orders are not available.

4.  On 9 September 2002, the applicant emailed the U. S. Total Army Personnel Command.  He stated he was assigned to Fort Campbell with a reporting date of September (2000).  He was trying to stay on recruiting duty with the Southern California Recruiting Battalion.  When he reported in to Fort Campbell, he asked one of the noncommissioned officers (NCOs) if he (the applicant) could work his stay with recruiting duty with his battalion back in California.  The NCO told him they would just extend his leave until the DA Form 4187 went through.  He waited for a while and figured he was still on leave since he had received no phone call or anything.  He needed more money so he ended up getting a job with a company called “auto-chlor.”  The other reason that he thought he was still on leave is because he was still getting paid.  

5.  The applicant went on to state that in December (2000) he knew he was probably out of leave but he was still getting paid.  He contacted the Army and was told he was AWOL from Fort Campbell.  He stated it seemed that somehow he got signed in at Fort Campbell in October of 2000 although he was nowhere near the area.  He then turned himself in to his old battalion in California.  He was there for about a month before Fort Campbell decided they should have responsibility for him.  He sat at Fort Campbell for three months before he found out they were going to court-martial him, but he also found out that the court date probably would not be for another six months.

6.  The applicant’s records contain a memorandum for record (MFR), dated        1 October 2003.  In this MFR, he stated that after going to Fort Campbell he had a misunderstanding with the officer who was in charge of the replacement battalion there.  He told her that he wanted to stay out on recruiting duty.  She said he would have to get reassigned to his previous duty assignment.  He went back to the Southern California Recruiting Battalion.  He had already sent his paperwork ahead and thought it got forwarded, but it did not.  He ended up being considered AWOL for two years although he was not reported AWOL until he discovered it when he put in an application with the California Highway Patrol.  He was looking for his current DD Form 214 and discovered he did not have it.  He finally returned to Fort Campbell on 11 December 2002 to take care of this matter.  He decided to take a chapter 10 so he would not have a Federal record, although everything that they had as evidence was reconstructed and hearsay and his lawyer at the time thought they might be able to beat the case.

7.  On 22 January 2003, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 20 August 2000 to on or about 18 January 2001 and from on or about 25 February 2001 to on or about 11 December 2002.  

8.  On 5 February 2003, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 in lieu of trial by court-martial.  He was advised that by submitting this request for discharge he acknowledged that he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He submitted no statement in his own behalf.

9.  On 12 February 2003, the appropriate authority approved the applicant’s request and directed he receive a discharge under other than honorable conditions.

10.  On 24 February 2003, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a discharge under other than honorable conditions.  He had completed a total of 11 years and 6 months of creditable active service.  His DD Form 214 for the period ending 24 February 2003 shows he had lost time from 25 February 2001 through 10 December 2002 and from 7 through 24 February 2003.  He was given a separation code of KFS and an RE code of 4.  

11.  On 17 May 2005, the Army Discharge Review Board (ADRB) found that the overall length and quality of the applicant’s service mitigated the discrediting entries in his service record and voted to grant partial relief in the form of an upgrade of the characterization of his service to general under honorable conditions.  However the ADRB determined that the reason for discharge was both proper and equitable.

12.  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 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.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

14.  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 processing into the Regular Army (RA) 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, including RA RE codes.

15.  RE code 4 applies to persons not qualified for continued Army service, and the disqualification is not waivable.  

16.  The Separation Designator Code (SPD) Reentry (RE) Code Cross Reference Table states that when the separation code is KFS then RE code 4 is given.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that he was told by a captain at Fort Campbell that he was released by the Army.  This somewhat matches his statement in the        1 October 2003 MFR in which he stated, “He was looking for his current DD Form 214 and discovered he did not have it.”  However, it does not match his other contentions.

2.  In his current application, the applicant contended that he wanted to stay with recruiting duty in Southern California and he was told by an E-7 that all he had to do was go back to his recruiting battalion and file a DA Form 4187and sign back in there.  In the 1 October 2003 MFR, he stated that he went back to the Southern California Recruiting Battalion and that he had already sent his paperwork ahead and thought it got forwarded, but it did not.

3.  If the applicant had followed the instructions of the E-7 and signed back in to his recruiting battalion, he would have been under military control, he could have 

checked on the status of his DA Form 4187 requesting reassignment back to the recruiting battalion, and he could have ensured that the recruiting battalion kept Fort Campbell apprised of his status.  

4.  Instead, as the applicant noted in his 9 September 2002 email, it appears he just stayed on leave from 7 August 2000 until around December 2000 (because the “NCO at Fort Campbell told him they would just extend his leave until the DA Form 4187 went through”) because by then “he knew he was probably out of leave.”  He was “on leave” for about 120 days.  As an experienced NCO with over ten years of service and over seven years in the Regular Army, he should have been well aware that Soldiers are allowed to carry over no more than        60 days of leave at the end of the fiscal year.  As an experienced NCO, he should have taken the initiative to contact the Army and not waited for the Army to contact him.  In addition, it appears he failed to follow the instructions of the Fort Campbell NCO who told him to sign in to his old battalion.  

5.  Fort Campbell “signed” him in to that installation because orders assigned him to that installation and because it appears he never reported back in to his old battalion to get himself attached there to await new orders.  Therefore, the orders assigning him to Fort Campbell were still valid and when he did not arrive on his reporting date his duty status was picked up as assigned not joined (i.e., AWOL). He would have discovered that had he taken the initiative to keep in touch with either Fort Campbell or his old recruiting battalion to check on his status.  

6.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

7.  Given the applicant’s age, rank, and experience and the length of his AWOL, a further upgrade of his discharge or a change in the narrative reason for his separation or in his RE code is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__tsk ___  ___jlp ___  __dwt  __  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.




      _____     TSK             __
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070019020


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508