IN THE CASE OF:	  

		BOARD DATE:	      28 MAY 2009

		DOCKET NUMBER:  AR20090003393 


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, a change to his reentry (RE) code and reconsideration for an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).  

2.  The applicant states he is requesting his RE code be updated and that his UOTHC discharge be upgraded. 

3.  The applicant provides an Army Human Resources Command (AHRC) Form 3553-1F (Statement of Service), dated 29 August 2008, in support of his 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060000814, on 24 October 2006.  

3.  During its original review of the case, the Board found the applicant's separation processing was accomplished in accordance with applicable regulations with no indication of procedural error which would have tended to jeopardize the applicant's rights.  It further concluded the applicant had voluntarily requested separation under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  

4.  The applicant's record shows that he enlisted in the Regular Army (RA) and entered active duty on 9 February 1995, and was trained in and awarded military occupational specialty (MOS) 92G (Food Service Specialist).  His DA Form 2-1 (Personnel Qualification Record) shows that he was advanced to private/E-2 (PV2) on 9 August 1995 and that this is the highest rank he attained while serving on active duty.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the National Defense Service Medal, Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  There are no individual awards listed in Item 9 and Item 21 (Time Lost) of the DA    Form 2-1 shows that he was absent without leave (AWOL) for 76 days from       27 December 1995 through 11 March 1996.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

5.  The applicant's disciplinary history also includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 20 November 1995, for being AWOL from on or about 13 October through on or about 17 October 1995.  His punishment for this offense was a reduction to private/E-1 (PV1) and forfeiture of 250.00 per month for two months (suspended).  

6.  A DD Form 458 (Charge Sheet), prepared on 9 February 1995, preferred a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 27 December 1995 through on or about 12 March 1996.

7.  On 14 March 1996, 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 UOTHC discharge if his request for discharge were approved, and of the procedures and rights available to him.  
8.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service.  In his discharge request, he acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, because he had no desire to perform further military service.  He also acknowledged his understanding that he could receive an UOTHC discharge, and of the possible effects of that discharge, which could include his being ineligible for many or all benefits administered by the Department of Veterans Affairs, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could encounter substantial prejudice in civilian life as a result of receiving an UOTHC discharge.  

9.  On 21 May 1996, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial and directed the applicant be furnished an UOTHC discharge.  On 12 June 1996, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued upon his discharge shows that he completed a total of
1 year, 1 month, and 18 days of creditable active military service and that he accrued 76 days of time lost due to AWOL.  It also shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 3.  

10.  On 4 August 1998, the Army Discharge Review Board (ADRB), after carefully considering all the issues raised and evidence provided by the applicant and his entire military service record, determined his discharge was proper and equitable and voted to deny an upgrade of the applicant's UOTHC discharge and a change to the narrative reason for his separation.  

11.  The applicant provides an AHRC Form 3553-1F, dated 29 August 2008, that was issued by the Chief, Veterans Support Branch, Personnel Actions and Services Directorate, United States Army Human Resources Command, St. Louis, Missouri.  This document indicates the applicant's active service between 9 February 1995 and 12 June 1996 was honorable.  It lists his rank as PV1 and indicates that the cause for his separation was unknown.  It is unclear what the purpose was for publishing this document or what source records were used in its preparation. 


12.  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, 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 UOTHC discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial; however, the separation authority may issue a general, under honorable conditions (GD) or HD based on the member's overall record of service.

13.  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.

14.  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.

15.  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 United States Army Reserve.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.  RE-4 applies to persons who have a nonwaivable disqualification.  

16.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial.  

17.  The Department of the Army SPD/RE Code Cross Reference Table in effect at the time of the applicant's discharge stipulated that RE-3 code was the proper code to assign members separated under the provisions of chapter 10, Army Regulation 635-200 who was assigned a SPD code of KFS.  Under the current version of the table, RE-4 is the proper code to assign members separated under these provisions with a SPD code of KFS.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC be upgraded to an HD was carefully reconsidered.  However, the evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request for discharge, he admitted guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  

2.  The record confirms that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. It further shows that he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge, and the UOTHC discharge he received was normal and appropriate under the regulatory guidance.  

3.  Further, the applicant's record includes a disciplinary history that includes his receipt of NJP and his accrual of 76 days of AWOL during two separate periods from 13 through 17 October 1995, and again from 27 December 1995 through
11 March 1996.  In addition, his record documents no acts of valor or significant achievement that would have supported the issuance of a GD or an HD by the separation authority at the time of his discharge, or that would support an upgrade to a GD or an HD at this time.  

4.  The evidence of record further shows the applicant was properly assigned an SPD code of KFS and an RE-3 code based on the authority and reason for his discharge.  Absent any evidence of error or injustice in the discharge process, which includes the SPD and RE code assignments, the assigned RE-3 code was valid at the time of his discharge and is even harsher under current standards.  As a result, there is an insufficient evidentiary basis to support a change to the RE code.

5.  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 or that would support amendment of the original Board decision in this case.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  __X______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The evidence presented does not demonstrate the existence of a probable error or injustice related to an upgrade of his discharge.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20060000814, on 24 October 2006.

2.  The evidence presented does not demonstrate the existence of a probable error or injustice related to the new issue concerning a change to his RE code.  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.



      ________XXX______________
               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)                                         AR20090003393



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ABCMR Record of Proceedings (cont)                                         AR20090003393



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