IN THE CASE OF:	

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:  AR20080013761 


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 under other than honorable conditions be upgraded to honorable.  He also requests, in effect, that his narrative reason for separation, separation code, and reenlistment (RE) code be changed.  

2.  The applicant states, in effect, that after his discharge he returned to his wife and daughter and maintained full time employment for 13 years as a cook.  Over time his family grew and he had two sons.  He goes on to state that he and his wife got a divorce but he still contributed to the welfare of his children.  In 2003, he was involved in a tragic car accident where his negligence and use of alcohol caused the untimely death of another person.  He is currently serving an eight year sentence for driving under the influence and vehicular manslaughter.  He states that he accepts full responsibility for all of his actions and he strives to improve his life.  He indicates that age and immaturity and the use of alcohol and drugs caused his military career to end early.  He claims that he has asked God to forgive him and that he has written letters of apology to this victim’s family and friends.

3.  The applicant also states that his discharge should be upgraded for the following reasons:  (1) clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge; (2) his average conduct and efficiency rating/behavior and proficiency marks were pretty good; (3) he received awards and decorations and letters of commendation; (4) his record of promotion shows he was generally a good service member; (5) he had a prior honorable discharge; and (6) he has been a good citizen since his discharge.  He further requests that his narrative reason for separation be changed to "Convenience of the Government" with a corresponding separation code and that his RE code be changed to RE-1.

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); an inmate worksheet; prison evaluations; character reference letters; certificates of achievement, recognition, and completion; and letters of commendation 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 was born on 9 September 1964.  He enlisted on 4 April 1986 for a period of 3 years.  He successfully completed basic combat and advanced individual training in military occupational specialty 94B (food service specialist).  On 27 October 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 October 1988 for a period of 4 years.  He attained the rank of specialist. 

3.  On 21 August 1989, charges were preferred against the applicant for attempted rape, rape, adultery, and two specifications of making false statements.  Trial by general court-martial was recommended.  

4.  On 21 September 1989, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

5.  On 28 September 1989, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

6.  Accordingly, the applicant was discharged under other than honorable conditions on 26 October 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 3 years, 6 months, and 23 days of active service.

7.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, CHAPTER 10."  Item 26 (Separation Code) on his DD Form 214 shows the entry, "KFS."  Item 27 (Reenlistment Code) on his DD Form 214 shows the entry, "RE 3-3C."  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the entry, "FOR THE GOOD OF THE SERVICE-IN LIEU OF COURT-MARTIAL." 

8.  There is no evidence of record which shows the applicant was diagnosed with alcohol or drug abuse or dependency prior to his discharge. 

9.  In support of his claim, the applicant provided three character reference letters from prison officials and a friend.  They attest that the applicant is an asset to the programs at the correctional center, that he is caring and compassionate, that he has excellent work habits, that he is dedicated and hard working, and that he is remorseful. 

10.  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.

11.  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, 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.
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.  

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 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation in effect at the time stated the reason for discharge based on separation code “KFS” is “For the good of the service - in lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, chapter 10.  

15.  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 processing into the Regular Army 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.

16.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.  

17.  RE-3C at the time applied to persons who completed over four months of service who did not meet the basic eligibility pay grade requirements of Army Regulation 601-280, chapter 2, or who had been denied reenlistment under the Qualitative Retention Process under Army Regulation 635-200, chapter 4.

18.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, prescribed eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2 of the regulation states, in pertinent part, that personnel in grades E-2 and below, regardless of years of service, are not authorized reenlistment. 
19.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

20.  The Separation Program Designator Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that Soldiers given an SPD [Separation Program Designator] of "KFS” will be given an RE code of 3.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 21 years old when he enlisted, he successfully completed basic combat and advanced individual training, and he completed over 3 years of service prior to his offenses.  
2.  Although the applicant contends that the use of alcohol and drugs caused his military career to end early, there is no evidence of record which shows that he was diagnosed with alcohol or drug abuse or dependency prior to his discharge or that he referred himself for treatment of alcohol problems.  

2.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

3.  Although the applicant contends that he has been a good citizen since his discharge, he admits that he was involved in a tragic car accident in 2003 where his negligence and use of alcohol caused the untimely death of another person.  Nevertheless, good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  The applicant’s record of service included serious offenses which led to general court-martial charges.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.
7.  The applicant’s narrative reason for separation and separation code were administratively correct and in conformance with applicable regulations at the time of his separation.  

8.  The RE-3 and RE-3C entries shown in item 27 on the applicant's DD Form 214 are correct and were applied in accordance with the applicable regulations.  

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.



      ______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)                                         AR20080013761



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ABCMR Record of Proceedings (cont)                                         AR20080013761



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