IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080004043 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that he is trying to correct the mistakes he made and      to repay debts from his troubled past.  With the love of a good wife and his    new-found Christian faith he has been able to correct the things that he had destroyed in his past except one.  He is now trying to pay back the government a debt he owes.  He would like to try to finish his military career the way he should have – honorably.  He would like to have the chance to be a man and finish what he started.

3.  The applicant provides no additional evidence.

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 was born on 21 July 1966.  He enlisted in the Regular Army on 9 October 1985.  He completed basic training and advanced individual training and was awarded military occupational specialty 62B (Construction Equipment Mechanic).

3.  DA Forms 4187 (Personnel Action) in the applicant’s records shows he was absent without leave from 2 December 1985 through 9 December 1985.

4.  Between December 1985 and April 1986, the applicant was formally counseled 19 times for various infractions of discipline.

5.  On 27 January 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit.

6.  On 3 April 1986, the applicant completed a mental status evaluation.  He was found to have the mental capacity to understand and participate in proceedings and to be mentally responsible.

7.  On 3 April 1986, the applicant completed a separation physical examination and was found to be qualified for separation. 

8.  On 28 February 1986, the applicant accepted NJP under Article 15, UCMJ, for disobeying a lawful command from his superior commissioned officer and for disobeying a lawful order from his superior noncommissioned officer.

9.  On 24 March 1986, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his place of duty.

10.  On 13 May 1986, the applicant accepted NJP under Article 15, UCMJ, for absenting himself from his place of duty.

11.  On 27 May 1986, the applicant’s commander recommended the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – patterns of misconduct.  The reasons cited by the commander were the applicant’s Article 15s, eight dishonored checks, and a bar to reenlistment.

12.  On 29 May 1986, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers and personal appearance before such a board, waived counsel for representation, and elected not to submit a statement on his behalf.

13.  On 30 May 1986, the applicant’s commander formally recommended he be separated under the provisions of Army Regulation 635-200 for misconduct. 

14.  On 21 July 1986, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

15.  On 28 July 1986, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct – pattern of misconduct.  He had completed 9 months and 11 days of creditable active service and had 8 days of lost time.  He was given reenlistment (RE) codes of 3 and 3B.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

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, 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.  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.

20.  RE code 3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

21.  Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria.  They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering the overall quality of his short period of service, the type of discharge he was given was and still is appropriate.

2.  The applicant’s desire to serve his country at this time is laudable.  He was given RE codes of 3 and 3B, meaning he was disqualified from reenlistment.  However, but the disqualification was/is waivable.  Since enlistment criteria change, and since an individual has the right to apply for a waiver, the applicant should visit his local recruiting station to determine if he should apply for a waiver.  It is recognized that the applicant might exceed the maximum age limit for enlistment at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  ___xx___  ___xx___  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.




 _   ______xxxxx____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080004043





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004043



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1