IN THE CASE OF:	

		BOARD DATE:	  30 September 2008

		DOCKET NUMBER:  AR20080011487 


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 his discharge be upgraded, his narrative reason for separation be changed to “Convenience of the Government,” and his Reenlistment (RE) code be changed from RE-4 to an RE-1 with appropriate separation program designator (SPD) Code.

2.  The applicant states that his ability to serve was impaired by his youth and immaturity and that he tried and wanted to serve, but was unable.  He also adds that his conduct, efficiency ratings, behavior, and proficiency marks were all good during his military service, and that his record of promotion shows he was a good Soldier.  He concludes that since his discharge, he has been a successful and productive member of society and that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.

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

	a.  DD Forms 214 (Report of Separation from Active Duty), dated 18 May 1978. 

	b.  Two self-authored statements.

	c.  Three letters of support/recommendation, dated on miscellaneous dates.

	d.  Academic transcripts, dated 3 June 2008, Capella University (online).
e.  Miscellaneous certificates of appreciation, completion, and recognition, dated on various dates.

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 he was born on 21 February 1959 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 23 February 1976. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4. 

3.  The applicant's records show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any significant acts, special recognition, or achievement during his military service.

4.  On 5 January 1978, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 5 February 1978.  He remained in this status until he surrendered to military authorities at Fort Lewis, Washington, on 25 April 1978.

5.  On 1 May 1978, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 5 January 1978 through 25 April 1978.  

6.  On 1 May 1978, 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.  He was also advised of 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 (AR) 635-200 (Personnel Separations).

7.  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 to 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, and 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. 

8.  On 2 May 1978, the applicant’s immediate commander conducted an interview with the applicant during which, the applicant stated that he was tired of working 5 or 6 days and he felt he could not cope with the Army anymore.  In view of the applicant’s attitude towards military life and his lack of rehabilitative potential, the immediate commander recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

9.  On 3 May 1978, the applicant’s intermediate commander remarked that the applicant’s pattern of behavior indicated that retention was neither practical nor desired, and as such, he recommended approval of the discharge with an Under Other Than Honorable Conditions Discharge Certificate

10.  On 5 May 1978, the applicant’s senior commander recommended approval of the discharge with an Under Other Than Honorable Conditions Discharge Certificate and remarked that his recommendation was based on a personal review of the applicant’s request for discharge, the court-martial charges, and the applicant’s rejection of further military service.

11.  On 8 May 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 
635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 18 May 1978, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged accordingly.  The applicant had completed a total of 1 year, 11 months, and 6 days of creditable active military service and he had 110 days of lost time due to being AWOL. 

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.
13.  In his undated self-authored statement, the applicant states, in effect, that:

	a.  he was 16 years old and in the 9th grade when he was contacted by a recruiter and that the recruiter painted a great picture of the Army, and with influence from his own father as well, the applicant ended up enlisting in the Army.

	b.  he was never in trouble during his military service and his record of promotion shows he was a good Soldier.

	c.  initially, he was stationed at Fort Riley, Kansas; but, his unit deployed to Germany for 13 months and that was the first time he had been away from his family.

	d.  he has been a productive member of the society, raised a wonderful family, went back to school an obtained a degree, held several respectable jobs, completed several courses of training, and continued to seek self-improvement.

	e.  he feels that he has paid for his mistake and should not continue to suffer because of that mistake.

14.  The applicant provided four letters of support/recommendation as follows:

	a.  in a letter, dated 10 July 2008, the applicant's pastor comments on the applicant's involvement in local community activities and that he is responsible and dependable.

	b.  in her letter, dated 14 July 2008, one of the applicant's friends comments on his concern for others, initiative and willingness to help others, perseverance, and dedication.  Additionally, the author remarks that the applicant is a family-oriented, God-loving, and outstanding citizen.

	c.  in his letter, dated 12 July 2008, one of the applicant's coworkers comments on the applicant's academic achievements despite his personal difficulties and his willingness to help others.

15.  AR 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.

16.  AR 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.

17.  AR 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.

18.  AR 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.  AR 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):

	a.  RE–1, applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

	c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

19.  AR 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 "JJD" SPD code is the correct code for Soldiers separating under chapter 3 of AR 635-200, as a result of court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's successful post-service academic achievements, support to his community, citizenship, and the letters of support/recommendation were noted.  However, they are not sufficiently mitigating to grant the applicant the requested relief.

2.  The evidence of record shows the applicant was 17 years of age at the time of his enlistment and nearly 19 years of age at the time of his offense.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of indiscipline were the result of his age.

3.  The evidence of record also shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested to be discharged 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.  

4.  The evidence of record confirms that the applicant’s narrative reason for separation, SPD code, and RE code were assigned based on the fact that he was separated under the provisions of chapter 10 of AR 635-200, in lieu of trial by court-martial.  The SPD code of “JFS” and the RE-4 code were the appropriate codes for the applicant based on the guidance provided in applicable regulations for Soldiers being discharged under the provisions of chapter 10 of AR 635-200.  Furthermore, the Separation and RE codes are consistent with the reason for his discharge.  Therefore, he received the appropriate RE and SPD codes associated with his discharge.

5.  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 evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly 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

__X_____  ___X____  ___X___  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.




      _______ _ X  _______   ___
               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)                                         AR20080011487



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ABCMR Record of Proceedings (cont)                                         AR20080011487



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