IN THE CASE OF:	  

		BOARD DATE:	       26 March 2009

		DOCKET NUMBER:  AR20080018205 


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, that his uncharacterized discharge be upgraded to honorable.  He also requests an upgrade of his reentry (RE) code so that he may again serve his country.    

2.  The applicant states that he is a moral individual and a good citizen.  He believes that he deserves [the right] to serve his country.  At the time of his enlistment his wife was pregnant.  She had a miscarriage soon after his arrival at Fort Benning, Georgia for training.  He requested emergency leave but it was denied.  He went home anyway and he returned to the Army 30 days later.  He wanted to stay in the Army but he was told his options were to be discharged or incarcerated.  He chose the discharge.  He really wants to reenlist.  Since his discharge, he has gone to school, has been a good citizen, and has matured.  He has all of his affairs in order and would like another opportunity.

3.  The applicant provides no documentation 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.  On 6 July 2001, the applicant enlisted in the Regular Army for 6 years.

3.  On or about 6 August 2001, the applicant was absent without leave (AWOL).  On 18 September 2001, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL.

4.  On 15 November 2001, the applicant surrendered to military control.

5.  On 20 November 2001, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or to lesser included offense(s) that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood 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.   

7.  On 29 March 2002, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  On 15 April 2002, the applicant was discharged.  Accordingly, he was assigned a Separation Program Designator (SPD) Code of KFS and an RE Code of 4.  His character of service was under other than honorable conditions.  He had completed a total of 5 months and 29 days of creditable active military service and accrued 69 days of time lost due to being AWOL.

8.  On 23 May 2006, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge.  The ADRB determined that the characterization of service was inequitable and directed that it be changed to uncharacterized.  The ADRB further determined that the discharge and the reason were proper and equitable.  The applicant's DD Form 214 (Certificate of Release of Discharge from Active Duty) was subsequently reissued to reflect this change.

9.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and 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 upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 4 as the proper RE code to assign to Soldiers for this reason.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he deserves an upgrade of the characterization of his discharge and RE Code because he is a moral individual and a good citizen.  Furthermore, he contends that he wants to serve his country as a Soldier.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he 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.  

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  The RE Code of 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE Code 4.  While the applicant’s desire to continue in the service to his country is commendable, there are no provisions authorizing the change of an RE Code for this purpose.

6.  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 the aforementioned requirement.

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

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.




      _______ _   _______   ___
               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)                                         AR20080018205



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ABCMR Record of Proceedings (cont)                                         AR20080018205



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