IN THE CASE OF:	 

		BOARD DATE:	  25 November 2008

		DOCKET NUMBER:  AR20080012762 


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 reconsideration of an earlier appeal that his under other than honorable conditions discharge be upgraded to a general (under honorable conditions) discharge.  

2.  The applicant states that his original contract for a specific duty assignment after completion of advanced individual training (AIT) was not honored after repeated requests.  He took matters in his own hands and chose to be absent without leave (AWOL) for a period sufficient for his command to acknowledge his complaint.  After returning from AWOL, he spoke with a Judge Advocate General (JAG) attorney in regards to his conduct and they requested that he be discharged in the best interest of the Army.  

3.  The applicant states that he was unaware that he would be discharged under other than honorable conditions and be reduced from Private First Class (PFC)/E-3 to Private (PV1)/E-1.  This was not explained to him in any documents until he received his DD Form 214 (Certificate of Release or Discharge from Active Duty).  The applicant continues that it was never his intent to have this happen.  He would have willingly finished his contract had they placed him where his contract originally stated.  He feels he was an asset to the Army and would like to enlist in the Wisconsin Army National Guard (WIARNG).  The applicant states that he is much older and understands how important work ethics and Army values play out in everyday life.  He would greatly appreciate approval of a waiver to enlist in the WIARNG.


4.  The applicant provides a memorandum for record from the WIARNG Recruiting Command, dated 13 May 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070009753, on 22 January 2008.

2.  The applicant's contentions are new arguments which will be considered by the Board.  In addition, the evidence provided is new evidence which will be considered by the Board.

3.  A DA Form 3286-60/1(Statement for Enlistment US Army Enlistment Option), dated 2 August 1989, shows the applicant selected the command/station of choice option on his enlistment in the Army with an unassigned ranger unit after meeting qualifications.

4.  The applicant enlisted in the Regular Army on 3 August 1989 and successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).  

5.  Item 21 (Assignment Consideration) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows that the applicant waived his command/station of choice with a ranger unit enlistment option on 15 November 1989.

6.  On 13 January 1990, the applicant was reassigned to Fort Campbell, Kentucky, as his first duty station.

7.  A DD Form 458 (Charge Sheet), dated 24 August 1990, shows charges were preferred against the applicant for being AWOL for the period 16 July 1990 through 17 August 1990.

8.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements in his own behalf.

9.  On 19 September 1990, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

10.  On 23 October 1990, the applicant was discharged from active duty and was issued an under other than honorable conditions characterization of service based on the provisions of chapter 10 of Army Regulation 635-200.  He had completed 1 year, 1 month, and 20 days of creditable active service with 31 days of lost time.  The applicant's DD Form 214 shows in item 24 (Character of Service) the entry "UNDER OTHER THAN HONORABLE CONDITIONS."
Item 26 (Separation Code) shows the entry "KFS."  Item 27 (Reentry [RE] Code) shows the entry "3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL."

11.  The applicant provided a memorandum for record from the WIARNG Recruiting Command, dated 13 May 2008.  The Recruiting and Retention 
Noncommissioned Officer (NCO) stated that the applicant had been actively pursuing entrance into the WIARNG for the past 2 years.  The Recruiting and Retention NCO stated that the applicant's DD Form 214 was incorrect and that items 26, 27, and 28 of his DD Form 214 did not correlate to the character of service discharge.  The Recruiting and Retention NCO stated, "He essentially received a bad conduct discharge for the good of the service.  This should have been "other than honorable (General)."  The Recruiting and Retention NCO further stated that due to this error the applicant is ineligible to serve in the Armed Forces because one person made an error completing his discharge packet.

12.  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, at any time after the charges have been preferred, 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. An under other than honorable conditions discharge is normally considered appropriate.


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.

14.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided 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.  The SPD code of KFS was the appropriate code for the applicant based on the guidance provided in that regulation for Soldiers separating under the provisions of Chapter 10, Army Regulation 635-200, by reason of In Lieu of Trial by Court-Martial.  Additionally, the SPD/RE Code Cross Reference Table established RE code 3 as the proper reentry code to assign to Soldiers with an SPD of KFS.

15.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he needs his discharge changed on his DD Form 214 in order to enlist in the WIARNG.  However, the ABCMR does not change records solely to allow former Soldiers to reenter the service.  The evidence of record confirms that the applicant’s separation processing was accomplished in accordance with the applicable regulations, to include the RE code 3 assignment. Lacking independent evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, the assigned character of service and RE-3 code was appropriate.  

2.  The applicant further contends that his original contract for a specific duty assignment not being honored caused him to go AWOL and that he was not aware that he would be discharged with an under other than honorable condition discharge.  His DA Form 2-1 shows that he waived his command/station of choice with a ranger unit enlistment option on 15 November 1989.  Records further show that a competent counsel properly advised him and that he fully understood the consequences of the discharge that he requested.  If he had concerns about his enlistment contract not being honored, he could have 
addressed those concerns in a statement with his discharge request; however, he elected not to submit a statement in his own behalf.  Therefore, there is no basis for these arguments.

3.  The applicant's records show that he was pending court-martial charges for being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requests.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070009753, dated 22 January 2008.



      __________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)                                         AR20080012762



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080012762



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1