IN THE CASE OF:	  

		BOARD DATE:	       19 May 2009

		DOCKET NUMBER:  AR20090001865 


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.  He also requests an upgrade of his reentry (formerly reenlistment) eligibility (RE) code 3 to RE code 1, and the narrative reason for his discharge be changed to something more acceptable.

2.  The applicant states, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) for his period of active duty service ending on 4 October 1984 indicates he was discharged with an RE code 3 for fraudulent entry.  He contends that this contradicts the entry stating that he was separated for the good of the service in lieu of court-martial.  He has since entered the South Dakota Army National Guard (SDARNG) and has served two tours in the combat zone in support of Operation Enduring Freedom.

3.  The applicant provides copies of his three DD Forms 214 and his approved request for waiver to enlist in the SDARNG in support of his application.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the SDARNG as a sergeant, pay grade E-5, as a military policeman.

2.  On 10 February 1982, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist).  He was subsequently assigned for duty in his MOS at Fort Hunter Liggett, California.
3.  On 14 October 1983, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to report for duty as the company charge-of-quarters runner.  The punishment included a forfeiture of $155.00 pay per month for 1 month and 14 days of extra duty.

4.  On 1 December 1983, the applicant was promoted to the rank of specialist four, pay grade E-4.

5.  On 30 April 1984, the applicant accepted NJP for failing to obey a lawful order from his company commander and for dereliction of duty.  The punishment included a reduction to pay grade E-3 (suspended), and 14 days of restriction and extra duty.  On 16 May 1984, the suspended punishment of reduction to pay grade E-3 was vacated as a result of the applicant's breaking restriction.

6.  On 27 August 1984, charges were preferred under the UCMJ for violation of Article 86, absent without leave (AWOL), during the period from on or about 20 June to on or about 21 August 1984.

7.  On 27 August 1984, 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.

8.  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 to a lesser included offense 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 13 September 1984, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions discharge certificate.  On 4 October 1984, the applicant was discharged accordingly.  He had completed a total of 2 years, 5 months, and 22 days of creditable active military service and had accrued 62 days of time lost due to AWOL.

10.  The applicant's DD Form 214 for the period ending 4 October 1984 indicates that he was discharged for the good of the service in lieu of court-martial.  His characterization of service is shown as under other than honorable conditions.  The DD Form 214 does not contain entries for the separation authority, separation code, or reenlistment code.

11.  On 2 November 1994, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge in lieu of court-martial was proper and equitable.  The ADRB denied his request.

12.  On 16 July 1998, the applicant requested a waiver of his RE code for the purpose of enlistment in the SDARNG.  The request indicates that his discharge from the Regular Army on 4 October 1984 was due to in lieu of court-martial.  In the processing of this action, The Adjutant General, SDARNG, was advised that Defense Manpower Data Center (DMDC) records indicated the applicant had been discharged on 4 October 1984 with an RE code 3 for fraudulent entry.  On 28 August 1998, the applicant's enlistment waiver was approved.

13.  On 13 October 1998, the applicant was assigned for duty as an Army National Guard unit member.  He was ordered to active duty in support of Operation Enduring Freedom on two occasions from 17 June 2002 to 9 March 2003 and from 15 October 2006 to 8 March 2008.

14.  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.

15.  Under the UCMJ the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army 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 Regular Army RE codes.  RE code 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.

17.  Army Regulation 635-5-1 (Separation Program Designator (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 Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table currently establishes RE code 4 as the proper RE code to assign to Soldiers for this reason.  It is not known what RE code was proper for SPD KFS at the time of the applicant's discharge.  In the more recent past, the RE code has varied between RE code    4 and RE code 3.

18.  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.

19.  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, in effect, that since he has been able to enlist in the SDARNG and served in a combat zone, that his Regular Army discharge under other than honorable conditions should be upgraded to honorable.

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

3.  The applicant did not acknowledge in his application that he was AWOL for 62 days and had requested a discharge in lieu of court-martial.  Furthermore, he has not provided any documentary evidence or argument showing that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.

4.  The applicant’s subsequent military service is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline committed during his period of active duty service in the Regular Army.

5.  The applicant's record of indiscipline during his period of Regular Army service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

6.  In accordance with the regulatory requirements, the applicant's DD Form 214 should have contained entries showing the authority for his separation as Army Regulation 635-200, chapter 10; an SPD code of KFS; and either an RE code of 4 or 3.  However, in view of the Board's policy of doing no further harm to an applicant, it would not be appropriate to add these entries on the basis of this case.

7.  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.

8.  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)                                         AR20090001865



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ABCMR Record of Proceedings (cont)                                         AR20090001865



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