IN THE CASE OF:	  

		BOARD DATE:	  	  18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080012146


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 that his discharge be upgraded from under other than honorable conditions.

2.  The applicant states that he understood that he would receive a general discharge once he was released from serving his time in the post stockade for unauthorized absence without leave (AWOL).  He states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he has an under other than honorable conditions discharge with a separation code of JKN and a reentry code of RE-3.  He understood that he was to wait 2 years and then he could reenter the military with no problems.  He continues to state that going AWOL was wrong and that he is truly sorry for his actions at that time.  He would love to have a second chance in the military and will give the Army everything that he has to show that he belongs here.  He is not scared of combat or being gone for long periods of time.  When he joined the Army the first time, it was because he loved it and still does.  If given another chance, [the Board] will see that nothing will stop him from giving his all to the Army.

3.  The applicant provides a copy of his DD Form 214 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 military service records show that he enlisted in the Regular Army on 22 September 1988.  He completed basic training and advanced individual training and was awarded the military occupational specialty 11B (Infantryman).

3.  Special Court-Martial Order 2 dated 22 January 1991 shows that the applicant was convicted pursuant to his pleas by a special court-martial of three specifications of Article 86, Uniform Code of Military Justice (UCMJ), for unauthorized AWOL.  The applicant was sentenced to confinement for 4 months and forfeiture of $450.00 pay per month for 6 months.  The convening authority approved only so much of the sentence as provided for confinement for 100 days and forfeiture of $450.00 pay per month for 3 months.  The applicant was credited with 31 days confinement against his sentence to confinement.

4.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review; however, there are sufficient documents available for a fair and impartial review of the applicant's request.  The evidence does include a properly constituted DD Form 214 that contains the authority and reason for the applicant’s active duty discharge.  This document was authenticated by the applicant with his signature in item 21 (Signature of Member Being Separated).

5.  On 5 April 1991, the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14 (Separation for Misconduct), paragraph 14-12a, with an under other than honorable conditions discharge.  The applicant was issued a DD Form 214 which reflects paragraph 14-12a as the separation authority for acts of misconduct deemed minor disciplinary infractions.  The separation and reentry codes associated with this type of discharge are JKN (Misconduct - Minor Infractions) and RE-3 per the cross-reference tables in effect at the time.  RE-3 is applied to a person separated from the service with a waivable disqualification for enlistment.  The applicant completed a total of 2 years, 1 month, and 28 days of creditable active military service with 126 days of lost time due to AWOL and confinement during this period.

6.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that he was awarded the Armed Forces Expeditionary Medal (Operation Just Cause), Army Service Ribbon, Combat Infantryman Badge, Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and Marksman Marksmanship Qualification Badge with Rifle Bar.

7.  On 7 June 1995, the Army Discharge Review Board determined that the applicant was properly and equitably discharged and denied his petition to upgrade his discharge.

8.  On 22 March 2000, the Army Board for Correction of Military Records denied the applicant's petition to change his reentry code of RE-3.  The Board determined that the applicant's administrative separation was accomplished in compliance with applicable regulations; therefore the type of discharge and reentry code were appropriate.

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army, the U.S. Army Reserve, and the Army National Guard.  Chapter 3 (Enlistment in the Regular Army, Army Reserve, or Army National Guard for Prior Service Applicants) of this regulation specifies that a reentry code is not upgraded unless it was administratively incorrect when originally issued; that a waiver may or may not be authorized depending on the disqualification; and depending on the needs of the Army, waivers may not be considered even though the disqualification could be waived.

10.  Table 3-1 (U.S. Army Reentry Eligibility Codes) of Army Regulation 601-210 states that a reentry code of RE-3 applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.  A Soldier separated with a reentry code of RE-3 is ineligible for future service unless a waiver is granted.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his discharge be upgraded from under other than honorable conditions was carefully considered and determined to be without merit.

2.  Although the specific facts and circumstances surrounding the applicant’s active duty discharge processing were not available for review, there were sufficient documents available for a fair and impartial review of the applicant's request.  The evidence of record includes a properly constituted DD Form 214 that contains the authority and reason for the applicant’s active duty discharge.

3.  The applicant was convicted of multiple charges of unauthorized AWOL by a special court-martial and sentenced to confinement for 100 days and forfeiture of $450.00 pay per month for 3 months.

4.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

5.  Based on the applicant's incidents of AWOL and his conviction by a special court-martial, his military 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)                                         AR20080012146





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ABCMR Record of Proceedings (cont)                                         AR20080012146



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