RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 April 2008
	DOCKET NUMBER:  AR20080000303 


	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. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 February 1982, as follows:

	a.  Upgrade his discharge to honorable;

	b.  Item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) from blank to “43E1P (Parachute Rigger)";

	c.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) to show the Parachute Rigger Badge;

	d.  Item 26 (Separation Code) from "KFS" to “MND”;

	e.  Item 27 [Reentry Code (RE Code)] from "RE-3B" to “RE-1”; and

	f.  Item 28 (Narrative Reason of Separation) from “Administrative Discharge-Conduct Triable By Court-Martial" to “Convenience of the Government."

2.  The applicant states that the presumption of regularity that assumes the Army acted correctly in characterizing his service as less than honorable does not apply in his case because of the evidence he presents.  He specifically presents the following arguments:

	a.  Clemency is warranted because of the injustice to him and his community.  His performance as an unqualified police officer has demonstrated his potential as an asset to his community if given the opportunity to become qualified through attending the police academy.  A decision not to upgrade his discharge would, in effect, deny the community of his services as a law enforcement officer.

	b.  His conduct, efficiency, and behavior were exemplary as evidenced by his outstanding evaluation report, high skill qualification test (SQT) score, recognition as the brigade Soldier of the month, certificates of achievement, letters of appreciation and commendation, training courses, multiple marksmanship badges, and award of the Jungle Expert Badge and the Parachutist Badge.


	c.  He was a promotion fast-tracker and even declined promotion to sergeant (SGT)/E-5 to pursue his interest in securing a Special Forces or combat arms assignment.  After he earned an honorable discharge during his first enlistment, he tried to reenlist for a Special Forces position, but was unsuccessful.  He settled on a parachute rigger position and was again unsuccessful upon his arrival to Fort Bragg, North Carolina to secure a Special Forces unit; so, he departed his unit in absent without leave (AWOL) status.  He further argues that aside from this isolated incident, he had an outstanding military record.

	d.  He has been a good citizen since his discharge:  he earned a college degree with distinction, was awarded several leadership awards, has been married for nearly 20 years, and has been accepted as an unqualified police officer.

	e.  The Army Discharge Review Board (ADRB) disproportionably and inequitably placed a heavy weight on his 47 days of AWOL and unfairly considered this isolated incident a reflection of his entire record. 

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

	a.  DD Forms 214, dated 27 June 1980 and 12 February 1982.  

	b.  Three Letters of Commendation, two Certificates of Achievement, and three Letters of Achievement.  

	c.  Certificate of Completion, Primary Noncommissioned Officer Course-Combat Arms, dated 2 February 1979.

	d.  Certificate of Training,  Jungle Warfare Training Course, dated 24 August 1979.

	e.  Certificate of Completion, Airborne Course, dated 4 June 1981.

	f.  Associate in Arts Diploma, dated 27 June 1991, The University of Alabama, Huntsville, Alabama.  

	g.  Bachelor of Science in Business Administration Diploma, dated 1 December 1991, The University of Alabama, Huntsville, Alabama.  

	h.  Letter, dated 17 May 1991, invitation to the 1990-1991 Undergraduate Academic Honors Convention, The University of Alabama, Huntsville, Alabama.  

i.  Certificate of Recognition, Student Government Association, The University of Alabama, Huntsville, Alabama.

	j.  Two Certificates of Membership, Honor Society, The University of Alabama, Huntsville, Alabama.

	k.  Letter, dated 21 March 1992, Nomination for University Student Leadership Award.

	l.  Letter, dated 24 April 1992, selection for membership in Honor Society, The University of Alabama, Huntsville, Alabama.

	m.  Letter, dated 8 May 1992, Selection as a member of the Dean’s List, 1991-1992, The University of Alabama, Huntsville, Alabama.

	n.  Undated Letter from the U.S. Army Recruiting Station, Huntsville, Alabama, Eligibility to reenlist with waiver, and extract of Army Regulation      601-210 (Active and Reserve Components Enlistment Program).

	o.  Two Letters of Support, dated 14 and 28 November 2007, from Chief of Police and Chief of Patrol Division, Cullman Police Department, Cullman, Alabama.

	p.  Article from the Cullman Times, dated 16 November 2007.

	q.  Letter of ineligibility to attend police academy, dated 9 November 2007, from the State of Alabama, Peace Officer’s Standards and Training Commission.

	r.  Extract of DA Form 2-1 (Personnel Qualification Record).

	s.  Headquarters, U.S. Army Quartermaster Center and Fort Lee, Fort Lee, Virginia, Orders 121-58, dated 19 June 1981, MOS Award.

	t.  Six Character Reference Letters. 


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 he enlisted in the U.S. Army Reserve (USAR) on 13 October 1976 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 28 June 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was also awarded MOS 11B (Infantryman) as a secondary MOS. The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  He was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 27 June 1980.  The DD Form 214 he was issued at the time of separation shows he completed 3 years of creditable military service.  

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

5.  After a short break in service, the applicant enlisted in the Regular Army for a period of 3 years in the grade of SP4/E-4 on 12 May 1981.  He completed advanced individual training and airborne training and was awarded MOS 43E (Parachute Rigger).  He was assigned to Company E, 407th Supply and Service Battalion, 82nd Airborne Division, Fort Bragg, North Carolina.

6.  On 4 November 1981, the applicant departed his unit in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 4 December 1981.  He surrendered to military authorities at the Presidio of San Francisco, 

San Francisco, California, on 20 December 1981 and was subsequently assigned to the Processing Company, U.S. Army Personnel Control Facility, Fort Ord, California.

7.  On 30 December 1981, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 3 November 1981 through on or about 20 December 1981.  

8.  On 30 December 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions – the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for 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).

9.  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 discharge under other honorable conditions.  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. 

10.  On 12 January 1982, the applicant’s immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The immediate commander remarked that the applicant’s pattern of behavior indicated that retention was neither practical nor desirable and that he went AWOL because he was having problems within his unit and desired a discharge because he no longer wanted to remain in the Army.  The immediate commander also remarked that the applicant stated “if returned to duty, he would again go AWOL.”

11.  On 14 January 1982, the applicant’s intermediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The intermediate commander remarked that the applicant’s pattern of behavior indicated that retention was neither practical nor desirable.
12.  On 18 January 1982, the applicant’s senior commander recommended approval of the discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The senior commander remarked that the recommendation was appropriate based on the applicant’s request for discharge and his rejection of further service.

13.  On 26 January 1982, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private/E-1.  On 12 February 1982, the applicant was discharged accordingly.  

14.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service, 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 11 (Primary Specialty) of the DD Form 214 shows a blank entry, Item 26 (Separation Code) 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 he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Parachutist Badge.  Item 13 does not show award of the Parachute Rigger Badge.   

15.  On 20 July 1995, the ADRB denied the applicant’s request for an upgrade of his discharge.

16.  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.

17.  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.
18.  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.

19.  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.

20.  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.  

21.  Department of the Army Pamphlet 611-201 (Enlisted Career Management Field and Military Occupational Specialty), in effect at the time, provided the enlisted military occupational specialty classification structure for the Army.  It stated, in pertinent part, that a Soldier holding MOS 43E, Parachute Rigger, supervises or packs and repairs cargo and personnel parachutes, and rigs equipment and supply containers for airdrop Parachute Rigger.  This MOS required the Soldier to be qualified as a Parachutist.

22.  Army Regulation 600-8-22 (Military Awards) provides in pertinent part for award of the Parachute Rigger Badge.  The Parachute Rigger Badge may be awarded to any individual who successfully completes the Parachute Rigger 

course conducted by the U.S. Army Quartermaster School and holds an awarded MOS of 43E (enlisted) or 401A (warrant officers).  The Parachute Rigger Badge may be awarded retroactively to any individual who graduated from the Parachute Rigger School after May 1951 and holds or at anytime held an awarded MOS.  The Parachute Rigger Badge may be revoked when the awardee has his or her Parachutist Badge revoked or refuses an order to make a parachute jump with a parachute they packed or initiates action which results in withdrawal of MOS 92R (previously 43E) before he or she completes 36 months in a parachute position.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded; his Separation Authority, Separation Code, RE code, and his Narrative Reason for Separation should be corrected because they are unjust; his 43E MOS should be listed; and he should be awarded the Parachute Rigger Badge. 

2.  With respect to the applicant’s MOS, evidence of record shows that the applicant completed advanced individual training and was awarded MOS 43E1P on 19 June 1981.  In order to maintain this MOS, the Soldier must remain qualified as a parachutist. 

3.  Army regulation provides the Parachutist Badge may be revoked when the qualification skills are lost, such as when the Soldier initiates action which results in termination of airborne status.  The applicant's act of indiscipline was the causative factor for the preferral of Court-Martial charges and his subsequent request for discharge in lieu of trail by Court-Martial.  Despite the absence of permanent orders revoking the Parachutist Badge, it is assumed the applicant's AWOL led to the loss of his airborne qualification, which would have automatically resulted in the loss of his MOS qualification.  Therefore, the blank entry in Item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) of the DD Form 214 is presumed to be correct. 

4.  With respect to the applicant's Parachute Rigger Badge, again, the applicant went AWOL which presumably resulted in the withdrawal of MOS 43E before he completed 36 months in a parachutist position.  Therefore, he does not meet the qualification for award of the Parachute Rigger Badge. 

5.  With respect to the applicant’s other arguments/requests:

	a.  His 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 character of his discharge accurately reflects his overall record of service.

	b.  There is no evidence in the available records, nor did the applicant provide documentation to substantiate what he described as “an injustice.”  The applicant was discharged in accordance with chapter 10 of Army Regulation
635-200, in lieu of trial by Court-Martial.  Absent his AWOL, there would have been no court-martial charges and no fundamental reason to process his discharge.  The underlying reason for his discharge was his pending trial by court-martial.  He chose to request separation instead. 

	c.  Evidence of record confirms that the applicant’s RE and Separation 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 trial 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 "KFS."  Therefore, the applicant received the appropriate RE and SPD codes associated with his discharge. 

	d.  The applicant’s post-service academic, professional, and personal achievements and character reference letters were noted.  Unfortunately, the misconduct which led to the discharge was serious enough to warrant a characterization of under other than honorable conditions and his post-service achievements do not change that fact.

	e.  The applicant’s prior honorable service, excellent duty performance, certificates of achievement, letters of commendation and appreciation, certificates of training, high SQT score, accelerated promotion, excellent evaluation, and desire to join the elite ranks of the Special Forces were also all noted.  However, the applicant had many legitimate avenues through which he could have received assistance or relief from his problems without resorting to AWOL.

	f.  The applicant’s ultimate goal of joining the police force is notable and commendable.  However, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs, benefits, or employment opportunities.  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.

6.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by Court-Martial.  The applicant voluntarily requested, without coercion, discharge from the Army in lieu of trial by Court-Martial.  All requirements of law and regulation were presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

7.  Based on his record of indiscipline, the applicant's service unfortunately does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __dkh___  __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.



							Linda D. Simmons
______________________
          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.