IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20090000673 


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 discharge under other than honorable conditions to a general discharge with a reentry code (RE Code) that will enable him to reenlist in the Army.

2.  The applicant states, in effect, that he is not eligible to reenlist with his current RE Code of 3-3B-3C.  The applicant states that he was an 18-year old child who was away from home for the first time and homesick.  He further states that the catalyst for his mistake was being summoned back home on emergency leave from Germany due to the death of an uncle.  Once he went home, he did not want to return to his unit so, he went absent without leave (AWOL) from his unit and stayed home.  Following his parents' receipt of a letter from his company commander informing them of his actions and the potential consequences, the applicant decided to return to military control at Fort Dix, New Jersey.  The applicant informed military authorities at Fort Dix that he did not want to remain in the Army and requested to be discharged.  Now, the applicant would like an opportunity to reenlist so he may make up for the shameful mistake that he made twenty years ago and honor the memory of his recently deceased father who was a veteran from the Vietnam era.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), a one-page self-authored statement, and a RE Code Waiver Request as documentary evidence in support of this 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's record shows that he was born on 11 September 1969.  The applicant enlisted in the United States Army Reserve Delayed Entry Program on 29 September 1987 and enlisted in the Regular Army on 21 July 1988, at the age of 18 years, 10 months, and 10 days.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 76Y (Unit Supply Specialist).  The applicant's only permanent party duty station was Service Battery, 2nd Battalion of the 3rd Field Artillery Regiment, located in the Federal Republic of Germany from 5 December 1988 until he was dropped from the unit rolls 4 months later.  The highest rank he attained while serving on active duty was the rank of private first class (PFC)/pay grade E-3.  However, at the time of separation he held the rank of private (PVT)/pay grade E-1.

3.  The record shows the applicant went into an AWOL status on 18 March 1989 and he was dropped from the active duty rolls on 17 April 1989.

4.  Fort Dix Control Facility (FDCF) Form 691 (Personnel Control Facility Information Sheet), dated 11 May 1989, shows the applicant surrendered and turned himself in to military control at Fort Dix, New Jersey, on 10 May 1989.  This form also shows the applicant indicated that he did not want to stay in the service and authenticated this statement with his signature.

5.  FDCF Form 691A (Personnel Control Facility Interview Sheet), initiated on 11 May 1989, shows the applicant stated, in effect, that he went AWOL because he could not adapt to a military lifestyle.  He also stated that, in his opinion, he was just going through the motions and he really was not and would never be a Soldier.  He concluded that after going home on emergency leave, he could not bring himself to return to his unit.

6.  DA Form 458 (Charge Sheet), dated 17 May 1989, shows the applicant was placed on pretrial restriction to the Personnel Control Facility on 10 May 1989 pending trial by court-martial for the charge of Desertion.  This form further shows that he was charged with violating Article 86 of the Uniform Code of Military Justice by being AWOL during the period 18 March 1989 until 10 May 1989.  The applicant was informed of this charge on 17 May 1989.

7.  Fort Dix Judge Advocate-Form Letter (FDJC-FL) 403, dated 18 May 1989, Subject:  Request for Discharge for the Good of the Service, shows 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 16 June 1989, the separation authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

9.  United States Army Training Center and Fort Dix, Fort Dix, New Jersey, Orders 186-87, dated 5 July 1989, reduced the applicant from PFC to PVT effective 16 June 1989 and discharged the applicant under the provisions of Army Regulation 635-200 effective 20 July 1989.

10.  The DD Form 214 issued to the applicant at the time confirms the applicant completed a total of 10 months and 8 days of creditable active military service and received an under other than honorable conditions characterization of service.  The DD Form 214 also shows the applicant had 53 days of lost time and he was discharged under the provisions of chapter 10 of Army Regulation
635-200 for the good of the service - in lieu of court-martial.  This form also shows that based on the authority and reason for his discharge, the applicant was assigned a Separation Program Designator (SPD) code of KFS in Item 26 (Separation Code) and a RE code of 3-3B-3C in Item 27 (Reentry Code).
11.  The applicant provides U.S. Army Recruiting Company Hartford, Vernon, Connecticut, Memorandum, dated 18 April 2008, Subject:  RE Code Waiver Request.  This memorandum shows that the Recruiting Company Commander submitted a request for approval of a reentry waiver for the applicant in order for him to be eligible to enlist in the Army.  The applicant did not provide a copy of the response from the approval authority.  However, a telephone inquiry to the point of contact shown on the memorandum revealed that the request for a waiver was denied on 28 October 2008.  The point of contact stated that the applicant's "request was denied in accordance with the provisions of Army Regulation 601-210 (Active and Reserve Components Enlistment Program), paragraph 4-25n and U.S. Army Recruiting Command Message 08-074, which both stipulate that RE Codes for discharges under other than honorable conditions are nonwaivable."  (Paragraph 4-25n (Nonwaiver disqualifying separations or discharges) of Army Regulation 601-210 stipulates that bad conduct discharges and dishonorable discharges are nonwaiver disqualifying discharges.)

12.  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 trial by court-martial.  

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 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the United States Army Reserve (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  Table 3-1 of that chapter includes a list of U.S. Army RE codes.  This table provides that RE code 3 apply to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  This table also provides that RE codes 3B, and 3C apply to Soldiers who were separated prior to the effective date of this regulation (7 July 2007) and did not meet reentry criteria at the time of their separation.  These persons are ineligible for reentry unless a waiver is granted.
15.  Chapter 4 of Army Regulation 601-210 contains waiver and nonwaiver enlistment criteria and prescribes procedures to initiate and process a request for waivers to meet basic enlistment qualifications.  Paragraph 4-13 (Prior military service) provides that once a 24-month waiting period has elapsed since the applicant was separated or discharged, a reentry code waiver may be submitted to the appropriate approval authority for persons who were discharged in lieu of trial by court martial for the good of the service.  Recruiters do not have the authority to disapprove a waiver request or to refuse to forward an applicant's request.  Applicants who do not meet established enlistment standards are not eligible for enlistment unless a waiver is authorized.  Commanders cited in this regulation have the authority to approve waivers as appropriate.  The burden is on the applicant to prove to waiver authorities that he or she has overcome their disqualifications for enlistment and that their acceptance would be in the best interests of the Army.  Waiver authorities will apply the "whole person" concept when considering waiver applications.  

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to a general discharge with a RE Code that will enable him to reenlist in the Army was carefully considered and determined to be without merit.

2.  The record shows the applicant deserted his unit 4 months after arriving at his first permanent duty station and remained AWOL for a period of 53 days.  The record also shows that he was dropped from the Army rolls prior to returning to military control.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge reflects his overall record of military service.


4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

5.  Evidence shows the applicant requested a waiver in order to reenlist which was subsequently disapproved by the appropriate authority.  Although the applicant was assigned a RE Code which appears to be eligible for waiver consideration in accordance with the governing regulation dated 7 July 2007, it appears that his request was denied based upon a provision of Army Regulation 601-210 which does not pertain to his specific type of discharge.  Paragraph      4-25n of this regulation stipulates that bad conduct discharges and dishonorable discharges are nonwaiver disqualifying discharges.  The applicant did not receive either a bad conduct or a dishonorable discharge.  The applicant was discharged under the administrative provisions of Chapter 10 of Army Regulation 635-200 in lieu of trial by court martial for the good of the service.  Paragraph 4-13 of Army Regulation 601-210 provides that individuals separated under this provision may submit a reentry code waiver request to the appropriate approval authority once a 24-month waiting period has elapsed since the applicant was separated or discharged.  Therefore, unless the regulation has been changed since 7 July 2007 (and it might have been, depending on the guidance outlined in U. S. Army Recruiting Command Message 08-074) the applicant appears to be eligible to submit a request for reconsideration of his previously disapproved request for an RE Code waiver at his local recruiting office.

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 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)                                         AR20090000673



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ABCMR Record of Proceedings (cont)                                         AR20090000673



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