IN THE CASE OF:	  

		BOARD DATE:	  3 March 2009

		DOCKET NUMBER:  AR20080018646 


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 under other than honorable conditions discharge be upgraded to honorable.  He also requests that the narrative reason for his discharge be changed and his reentry eligibility (RE) code be changed to RE Code 1.

2.  The applicant states that an upgrade would be very helpful to him when he is applying for employment and the adverse consequences of a bad discharge would only be detrimental to any future that he has left.  He also states that his record of promotions shows he was generally a good service member.  His starting rank was pay grade E-1 and he was promoted to pay grade E-4.  His average conduct and efficiency ratings were good and he was never disrespectful to an officer.  He was close to completing his tour of duty on a 
3-year enlistment of which he had already served 2 years and 8 months.  Due to some very personal things that were going on in his life at that time, he left the service to avoid embarrassment.  He further states that he joined the service when he was only 17 years old as a way to get out of the foster home in which he was being raised.

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 he enlisted in the U.S. Army Reserve in the Delayed Entry Program on 27 December 1979.  He enlisted in the Regular Army (RA) in pay grade E-1 on 11 January 1980 for 4 years.  On the date of his enlistment he was 17 years and 10 months of age; his date of birth is 19 March 1962.  He completed basic and advanced training and was awarded military occupational specialty 19D (Cavalry Scout).  He was advanced to pay grade E-3 on 11 January 1981.

3.  On 9 April 1981, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for throwing a 10-inch screwdriver at another Solider with the intent of injuring him.  His punishment included a reduction to pay grade E-2, a forfeiture of $130.00 pay, and 7 days of extra duty.  He did not appeal the punishment.  He was reduced to pay grade E-2 on 9 April 1981.

4.  The applicant was again advanced to pay grade E-3 on 28 August 1981 and promoted to pay grade E-4 on 22 January 1982.

5.  On 29 June 1982, he was punished under Article 15, UCMJ, for disobeying his superior noncommissioned officer on or about 9 June 1982.  His punishment included a reduction to pay grade E-3 (suspended until 28 August 1982), a forfeiture of $168.00 pay, and 14 days of restriction and extra duty.  He did not appeal the punishment.

6.  The applicant was reported absent without leave (AWOL) on 8 December 1982 and dropped from the rolls of his organization on 10 January 1983.  He was placed in civil confinement on 7 September 1983.  He was again reported AWOL on 12 September 1983 and dropped from the rolls on 13 September 1983.

7.  On 11 September 1989, the applicant was apprehended by civilian authorities on civilian charges of possession of burglary tools and confined to the county jail pending a court appearance.  On 25 September 1989 he appeared in court and the charges were dropped.  He was returned to military control on 25 September 1989.

8.  On 11 October 1989, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, United States Army Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with two specifications of AWOL from 8 December 1983 to 7 September 1983 and from 12 September 1983 to 25 September 1989.

9.  On 11 October 1989, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 16 October 1989, the applicant's unit commander recommended his request be approved.  The unit commander stated that based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect.  He believed a discharge at that time to be in the best interest of all concerned.

11.  On 31 October 1989, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that an Under Other Than Honorable Conditions Discharge Certificate be issued, and directed the applicant be reduced to pay grade E-1.

12.  The applicant was discharged on 19 December 1989 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He was credited with 3 years, 1 month, and 22 days of total active service.  He was also credited with lost time from 8 December 1982 to 6 September 1983, from 7 September 1983 to 11 September 1983, and from 12 September 1983 to 24 September 1989.

13.  Item 26 (Separation Code) of the applicant's DD Form 214 states "KFS" and item 27 (RE Code) states "3B, 3C, 3."  Item 28 (Narrative Reason for Separation) contains the entry, "for the good of the service – in lieu of court-martial."

14.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, 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 under other than honorable conditions discharge was normally considered appropriate.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, also 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.

18.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the RA and the Reserve.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior-service applicants for enlistment.  This chapter included a list of Armed Forces reentry codes, including RA RE codes.  Chapter 3-10 also provided that RE codes could be changed only if they are determined to be administratively incorrect.

19.  An RE code of "3B" applied to persons who had time lost through AWOL or confinement.  An RE code of "3" applied to persons who had completed over 4 months of service who did not meet the grade and service criteria.  An RE code of “3” applied to persons not qualified for continued Army service.  RE codes of 3B, 3C, and 3 applied to persons who are ineligible for enlistment unless a waiver was granted. 

20.  Army Regulation 601-280 (Total Army Retention Program), in effect at the time, specified in chapter 2, paragraph 2-20, that Soldiers being discharged or separated under Army Regulation 635-200, chapter 6, 9, 10, 11, 13, 14, or 15, are ineligible for immediate reenlistment.  In some cases, Soldiers discharged under these provisions may be totally ineligible for reenlistment at any time.

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation shows that the SPD of "KFS" as shown on the applicant’s DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is a "in lieu of trial by court-martial" and the authority for discharge is Army Regulation 635-200, chapter 10.

22.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows SPD codes with their corresponding RE codes.  The Soldier’s file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KFS" at the time had a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 17 years and 10 months of age when he enlisted in the RA.  He served from his enlistment in 1980 until 1982 without serious incident.  At the age of 19 and 20 years old, respectively, he resorted to several lengthy periods of AWOL as a means of addressing any problems he may have been having.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  The evidence shows the applicant requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a special court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  His misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a fully honorable discharge.

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

6.  The applicant was discharged on 19 December 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was issued a separation code of "KFS" that has a corresponding RE code of "3."  Pertinent regulation shows that the SPD code "KFS," as shown on the applicant’s DD Form 214, is appropriate for the type of discharge received.  Therefore, he has failed to show that the separation code and the RE code applied to his DD Form 214 are incorrect.

7.  The applicant's disagreement with the narrative reason for his separation is not a sufficient reason to change the reason for his separation.  The evidence is clear – the applicant was separated from the Army for the good of the service in lieu of court-martial.  There is no evidence of record available which shows he is entitled to correction to the narrative reason of his DD Form 214.

8.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

9.  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.



      ___________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)                                         AR20080018646



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ABCMR Record of Proceedings (cont)                                         AR20080018646



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