IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20090001650 


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 discharge under other than honorable conditions be upgraded to honorable discharge and that his Reentry (RE) code be changed to an RE code of “1.”

2.  The applicant states, in effect, that his father died and he did not handle the situation well.  He lacked maturity and was not offered the counseling he needed to handle the situation.  He does not believe he should be penalized as an adult for what can truly be called youthful indiscretion.

3.  In support of his request, the applicant provides an addendum to his DD Form 149 (Application for Correction of Military Record), a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), and five statements of support from members of his family.

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 records show he was born, on 14 September 1973, and enlisted in the US Army Reserve on 4 October 1990.  The applicant enlisted in the Regular Army, on 18 June 1991, at the age of 17 years, 9 months, and 4 days.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training at Fort Lee, Virginia.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was advanced to the rank and pay grade of private first class, E-3, on 1 April 1992.  This was the highest rank that he attained.  The record contains no documented acts of valor, achievement, or service warranting special recognition. 

4.  The applicant volunteered for Basic Airborne Training; however, he failed to complete this training and was denied award of the Parachutist Badge.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows he was absent without leave from his unit from 22 July 1992 through 12 May 1993 which was a period of 295 days.

6.  A copy of a DA Form 4187 (Personnel Action), dated 20 May 1993, is on file in the applicant's personnel record.  This DA Form 4187 shows the applicant was apprehended by civilian authorities in Waukegan, Illinois, on 13 May 1993, and he was returned to military control on the same date.

7.  All the documents related to the applicant's request for discharge in lieu of court-martial are not on file in his service personnel record.  

8.  On 21 May 1993, court-martial charges were brought against the applicant for absenting himself without authority from his unit from 22 July 1992 through
13 May 1993.  The applicant acknowledged these charges on the same date.

9.  On 21 May 1993, prior to making a request for discharge, the applicant was counseled by a captain assigned to the Judge Advocate General’s Corps.  The applicant was advised of the basis for the contemplated trial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of receiving an under other than honorable conditions discharge, and of the procedures and rights available to him.  He acknowledged that the decision to submit a request for discharge was his own.
10.  On 21 May 1993, the applicant voluntarily submitted a request for discharge under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant stated he had been advised of the implications that were attached to his request and moreover, he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.  The applicant acknowledged that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel or counsel of his own choice.  

11.  The applicant acknowledged he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged he understood that as a result of the issuance of such a discharge he could be deprived of all benefits administered by the Department of Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if issued an under other than honorable conditions discharge.

12.  The applicant was advised that he could submit a statement in his own behalf which would accompany his request for discharge.  The applicant indicated he did not wish to submit a statement with his request.

13.  Headquarters, US Army Personnel Control Facility, US Army Armor Center, Fort Knox, Kentucky, Orders 111-3, dated 7 July 1993, show the applicant’s rank was reduced from private first class (E-3) to private (E-1).

14.  Headquarters, US Army Armor Center and Fort Knox, Orders 204-00213, dated 23 July 1993, show the applicant was reassigned to the U.S. Army Transition Point, on 2 August 1993, for the purpose of undergoing transition processing.

15.  On 2 August 1993, 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, with service characterized as under other than honorable conditions.  The applicant had completed 1 year, 3 months, and 24 days of net active service with 295 days of time lost.  Item 26 (Separation Code) shows he was assigned a separation code of "KFS" (discharge in lieu of trial by court-martial) and Item 27 shows he was assigned a RE code of "3."  
16.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges had been preferred.  An under other than honorable conditions discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge be granted if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

18.  Army Regulation 635-200 further states, in pertinent part, 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. 

19.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  Table 2-3 included a list of the RA RE codes:

   a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.
   
   b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.  
   
   c.  RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

20.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

21.  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 separation specifically allows such characterization.

22.  The applicant stated, in effect, that he shipped out to boot camp when he was 17 years of age.  It was the hardest thing he ever had to do; but, when he saw how proud his father was, it made leaving worth it.  When his father died a short time later, he was devastated.  He did not know how to handle the situation.  Now that he is older, he would handle the situation differently.  He is so sorry for what he did back then.  He states that he was a good Soldier and enjoyed serving his country.  He concludes by stating that he would be grateful for an upgrade of his discharge because he thinks he has suffered enough.

23.  The applicant's brother, E____ E_____, states that the applicant is a real good guy.  He is helpful around the house and he helps others when they are in need.  He shovels snow for the elderly in the winter and doing things like this show what a good person he is.

24.  The applicant's sister, J______ E___, states that the applicant is a good citizen by her standards.  He is always willing to help.  He helps the elderly to shovel snow in the winter, he helps her daughter with her reading and he takes her son to the park.  She states that she is hopeful the applicant will get the help he deserves.

25.  The applicant's mother states, in effect, that the applicant was excited to go into the military when he joined.  He really wanted to do his best in the military and then go on to college.  When she thinks back on it, at the age of sixteen, he was not mature, he was naive of real grown up life.  She takes some of the responsibility for him because she signed for him to join the military.  She believes he has suffered for his wrongdoing.  The applicant is a good person and he deserves a chance to contribute to society and to be a productive citizen.

26.  The applicant's brother, L____E____, states, in effect, that the applicant was real young when joined the military.  He believes that if the applicant had been older and more mature, the outcome would have been different.  The applicant is sorry for his actions.  He states that the applicant is a very good person and he helps people out a lot.  He believes personal problems contributed to the applicant’s going absent without leave when he was in the military.  He believes the applicant should be given another chance by upgrading his discharge.  The applicant has suffered enough.

27.  The applicant's sister, V_______ E___, states, in effect, that the applicant is always there to help people when they are in need.  He has changed from a young man to a mature grown man.  She knows that he would really benefit if his discharge was changed.  He is truly sorry for what happened when he was young and left the military.  The applicant has become a good person and most of all, a good citizen.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit sufficient evidence that would satisfy this requirement.

2.  The evidence shows the applicant absented himself without leave from his unit and was dropped from the rolls of his organization.  He remained absent without leave for 295 days.  The applicant was apprehended by civilian authorities in Waukegan, Illinois, and he was returned to military control.

3.  The applicant voluntarily requested discharge under the provision of chapter 10, Army Regulation 635-200 to avoid trial by court-martial.  He acknowledged that he was making the request of his own free will without coercion.  The applicant stated he had been advised of the implications that were attached to his request and he had no desire to perform further military service.

4.  The applicant was discharged under the provisions of Army Regulation 
635-200, Chapter 10, in lieu of court-martial, at his request.  The applicable regulation shows that 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 this prior to making his request.

5.  The available evidence further confirms the applicant was assigned a 
RE code of “3” because he was separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, due to being absent without leave.  The RE code associated with this type of discharge is RE-3.  The applicant’s codes were appropriate when they were assigned and they are still appropriate. 

6.  It appears the applicant's entire record of service was fully considered by his command and due to his extended period of absence, and his poor conduct and performance, the reason for discharge and the characterization of service are both proper and equitable.

7.  The character reference statements the applicant provided are acknowledged; however, his post service conduct is not sufficient to mitigate his extended period of absence.  
8.  The applicant's contention that his youth and immaturity impacted his ability to serve successfully was considered.  The applicant was almost age 18 at the time of his enlistment in the Regular Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who served successfully and completed their term of service.

9.  Additionally, it was the applicant’s responsibility to inform his chain of command if he needed help dealing with personal problems.

10.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general or fully honorable discharge.

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)                                         AR20090001650



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001650



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1