IN THE CASE OF:	  

		BOARD DATE:	  	  18 November 2008

		DOCKET NUMBER:  AR20080014013 


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, an upgrade of his reentry (RE) code of RE-4 to an RE-2 or RE-3.  

2.  The applicant states, in effect, that one can only be punished for so long.  The applicant adds that prior to his misfortune, he was an outstanding Soldier.  He served his country well and believes that because of a lack of true support he was left to the mercy of the system.  

3.  The applicant provides no additional documents in support of his case.

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 record shows that he initially enlisted in the Regular Army and entered active duty on 30 May 1978.  He was trained in and awarded military occupational specialty (MOS) 16D (Missile Crewmember).  The applicant was honorably discharged on 30 December 1980 after serving 2 years, and 7 months honorable active service.  On 31 December 1980, he immediately reenlisted for a period of 5 years.  On 1 August 1985, the applicant was honorably discharged after serving 4 years and 7 months of honorable active service.  On 2 August 1985, the applicant again reenlisted for a period of 6 years.  The highest grade he attained was pay grade E-5.

3.  On 21 October 1988, court-martial charges were preferred against the applicant for failure to go at the prescribed time to his appointed place of duty, for disobeying a lawful order by having sexual intercourse with a female trainee and for operating a vehicle with a passenger in the car, while drunk.  

4.  On 7 December 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under conditions other than honorable and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, the request was made of his own free will and he was not coerced into making the request.  The applicant understood that by submitting the request for discharge, he acknowledged that he was guilty of the charges against him.  He also acknowledged that if his discharge request was approved, he could be deprived of many or all Army benefits, 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.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions (UOTHC).  

5.  On 15 December 1988, the separation authority approved the applicant’s request for discharge and directed that he be reduced to the lowest enlisted grade and that he be issued a UOTHC Discharge Certificate.  

6.  On 21 December 1988, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10 (for the good of the service – In lieu of court-martial).  The separation document (DD Form 214) he was issued confirms he completed 10 years, 6 months, and 22 days of creditable active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of KFS and an RE code of RE-4.  

7.  The applicant authenticated his 21 December 1988, DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

8.  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.  An UOTHC discharge is normally considered appropriate.  

9.  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 and processing into the Regular Army (RA) and the US 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-4 applies to persons who are permanently disqualified for continued Army service.

10.  Army Regulation (AR) 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.  The SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 10 (For the Good of Service-In Lieu of Court Martial).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered.  However, by regulation, the RE-4 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200, Chapter 10 for the good of service – in lieu of court-martial.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met; the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-4 code and the narrative reason for separation were and still are appropriate.  
2.  The ABCMR has never had a policy where a discharge was automatically upgraded because of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge or recode etc; 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.  

3.  The applicant's record of service shows that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his reenlistment code.

4.  RE-4 applies to persons who are permanently disqualified for continued Army service.

5.  Therefore, in order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080014013



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ABCMR Record of Proceedings (cont)                                         AR20080014013



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