IN THE CASE OF:	  

		BOARD DATE:	        30 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009549 


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 general discharge (GD), under honorable conditions be upgraded to honorable; that his separation be changed; that his narrative reason for discharge be changed; and that his Separation Program Designator Code (SPD) and Reentry (RE) Code be changed. 

2.  The applicant states, in effect, that his discharge was related to bipolar disorder, anxiety, and mental illness. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), in support of his application.

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 official military records and the specific facts and circumstances leading to his discharge were not available for review.  He was notified on two previous occasions that attempts were made to locate his military records at the repositories in St. Louis, Missouri, without success.  A review of his official record maintained on the Integrated Personnel Electronic Records Management System (iPERMS) contained a copy of his DD Form 214; a copy of his U.S. Army Reserve (USAR) enlistment contract; a copy of his discharge orders; copies of his DA Form 553 (Deserter/Absentee Wanted by the Armed Forces) and DD Form 616 (Report of Return of Absentee); and copies of his DA Forms 4187 (Personnel Actions) showing his absentee, deserter and return to duty status. 

3.  The available evidence shows the applicant enlisted in the USAR on 
10 March 1999 for a period of 8 years. 

4.  On 7 December 2003, the applicant was ordered to active duty in support of Operation Iraqi Freedom.  It appears that he reported to active duty as directed, but on 8 December 2003, he was reported AWOL.  He surrendered to military authorities on 2 June 2004 and he was returned to duty.    

5.  The applicant's DD Form 214 shows he was discharged on 29 December 2004, under the provisions of Army Regulation 635-200, chapter 14-12c(1), misconduct – AWOL returnee, and that his service was characterized as general, under honorable conditions.  His DD Form 214 does not show any lost time due to AWOL; however, he was AWOL for a period of 174 days.  He was assigned an SPD of "JKD" and an RE code of RE-4.

6.  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 and patterns of misconduct such as frequent incidents of a discreditable nature with civil or military authorities, commission of a serious offense, and desertion or AWOL.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

7.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

8.  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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the 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.  RE 1 and 2 permit immediate reenlistment if all other criteria are met. RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-4 applies to individuals who were separated from with a disqualification which cannot be waived and is ineligible for reenlistment

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), AR 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

10.  A SPD code of "JKD" is used for Regular Army Soldiers who are discharged for misconduct – AWOL returnee, under the provisions of Army Regulation
635-200, chapter 14-12c(1).  The SPD/RE Code Cross Reference Table shows that RE code RE-4 is the applicable RE code assigned for this type of discharge.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances leading to the applicant's discharge were not available in his official record.  However, the record shows that he was AWOL for 174 days and he was discharged under the provisions of Army Regulation 635-200, chapter 14-12c(1), for misconduct as an AWOL returnee. 
In the absence of any evidence to the contrary, administrative regularity must be presumed in the applicant's discharge.



2.  The applicant contends he was discharged for bipolar disorder, anxiety and mental illness.  There was no medical evidence available for review in the applicant's official record and the applicant did not provide any evidence to show that he had a mental condition at the time of his discharge.

3.  Given the above, based on the available evidence, there is no basis upon which to grant the applicant's requests.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080009549



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ABCMR Record of Proceedings (cont)                                         AR20080009549



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