IN THE CASE OF:	

		BOARD DATE:	  5 March 2009

		DOCKET NUMBER:  AR20080018568 


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 (UOTHC) be upgraded to fully honorable, that the reason for his discharge be changed to the convenience of the government, that his reentry (RE) code be changed to RE-1, and that he be given a corresponding separation program designator (SPD) code.

2.  The applicant states that he had gone home with another Soldier on a holiday weekend, had a great time, and met a girl.  At that point he "forgot to come back."  Since his discharge he has been a good citizen, has never been to prison, and owned his own trucking business.  In 2006 he lost his arms and legs but is learning a new and different way of life now.  He is also learning how to walk again.

3.  The applicant provides a statement from a Department of Veterans Affairs wheelchair team and his DD Form 214 (Report of Separation from Active Duty).

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 records show that he enlisted in the Regular Army on 17 January 1977 and was awarded the military occupational specialty (MOS) 36C (wire systems installer/operator).

3.  Between 16 January and 5 June 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on three occasions for possession of marijuana, driving a motor vehicle on the military installation while his driving privileges were suspended on post, and failing to go at the time prescribed to his appointed place of duty.

4.  On 11 August 1978, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 5 July to 16 August 1978.

5.  The applicant's discharge packet is not contained in his available records.  However, on 28 September 1978 the applicant was discharged UOTHC under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (discharge for the good of the service – in lieu of court-martial).  He was assigned an RE code of RE-3B and a SPD of "JFS."

6.  On 28 November 1978, the applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  In his application to the ADRB the applicant stated that he had gone on leave with a buddy and his car's transmission coupling went out.  He called his platoon sergeant and was told he could have up to 5 days to get it fixed.  However, once he paid for the car repair, he did not have the money to return to his unit.  He called his unit again and was told that he had only been given 1 day to make it back to his company, so he was already AWOL.  He then asked a buddy at the unit to send him a check which was in his mailbox, but his buddy sent the check to his parent's house by mistake.  By this time he was already AWOL 9 or 10 days so he was scared that his commander would throw him in jail.

7.  On 7 January 1980, the ADRB denied the applicant's request for an upgrade of his discharge.

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 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.

9.  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.  

10.  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.

11.  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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve (USAR).  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.

12.  RE-3B applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.  It also indicates that a person had lost time during his/her last enlistment.

13.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provides guidance on the SPD to assign Soldiers who are being separated.  The SPD code of "JFS" is assigned to Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The Board begins its deliberation with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to prove otherwise.

2.  Court-martial charges had been preferred against the applicant for being AWOL from 5 July to 16 August 1978, and the applicant was discharged for the good of the service - in lieu of court-martial.

3.  In order to be discharged under Army Regulation 635-200, chapter 10, the applicant would have had to admit guilt to the offense or a lesser included offense which authorized a punitive discharge.  The applicant would have also had to acknowledge that he could receive a discharge UOTHC and the effects of such a discharge.

4.  While the applicant states that while on a holiday weekend he forgot to come back because he was having such a great time, this story differs from what he presented to the ADRB.

5.  The applicant had accepted NJP on three occasions and was charged with being AWOL for 1 month and 12 days.  Such misconduct certainly warranted a discharge UOTHC.

6.  While the applicant's post-service conduct is commendable, and it is certainly regrettable that he has had major health issues, it is insufficient to warrant upgrading a properly issued discharge or changing a reason for separation.

7.  Since the reason for the applicant's separation is commensurate with the regulatory authority for his separation, there is no basis for changing his reason for separation to convenience of the government, changing his RE code of 3B to RE-1, or changing his SPD code to any other code.

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)                                         AR20080018568



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ABCMR Record of Proceedings (cont)                                         AR20080018568



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