IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090003628 


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 a general discharge and that his Reentry (RE) code be changed to an RE code of "1."

2.  The applicant states, in effect, that he was immature for his age and was under extreme pressure at the time of his separation.  Since his separation, he has matured.  He has become more stable, he has gotten married and has a good employment history.  He also states that he is completing nursing school in March 2010 and wishes to serve his country as a nurse in critical times.  He concludes his request by respectfully requesting consideration for a second chance.

3.  In addition to his DD Form 149 (Application for Correction of Military Record), the applicant submitted a DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States).  The applicant submitted no other documents in support of his request.

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 6 August 1970 and enlisted in the US Army Reserve on 1 September 1987.  The applicant enlisted in the Regular Army on 22 October 1987 at the age of 17 years, 2 months, and 17 days.  He successfully completed One Station Unit Training at Fort Leonard Wood, Missouri.  Upon completion of his training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows the applicant was never advanced beyond his entry rank and pay grade of Private, E-1.  The applicant's record contains no documented acts of valor, achievement, or service warranting special recognition. 

4.  A copy of a DA Form 4187 (Personnel Action) dated 19 January 1988, on file in the applicant's personnel record, shows he was reported absent without leave by his unit with an effective date of 18 January 1988.

5.  A copy of a DA Form 4187 dated 28 January 1988, on file in the applicant's personnel record, shows his status was changed from absent without leave to confined by military authorities with an effective date of 27 January 1988.  The DA Form 4187 also shows the applicant was apprehended by military authorities at Fitzsimmons Medical Center in Aurora, Colorado.

6.  A copy of a DA Form 4187 dated 29 January 1988, on file in the applicant's personnel record, shows his status was changed from confined by military authorities to present for duty at his unit with an effective date of 28 January 1988.

7.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 shows the applicant was reassigned to Company C, 16th Engineer Battalion in Germany and reported to that unit on 24 February 1988.

8.  A copy of a DA Form 4187 dated 30 March 1988, on file in the applicant's personnel record, shows he was reported absent without leave by his unit with an effective date of 29 March 1988.

9.  A copy of a DA Form 4187 dated 2 May 1988, on file in the applicant's personnel record, shows his status was changed from absent without leave to dropped from the rolls of his unit with an effective date of 29 April 1988.

10.  A copy of a DA Form 4187 dated 25 October 1988, on file in the applicant's personnel record, shows his status was changed from dropped from the rolls of his unit to returned to military control with an effective date of 17 October 1988.  The DA Form 4187 also indicates the applicant was apprehended by military authorities in San Diego, California, and was returned to military authorities at Long Beach, California, on the same date.

11.  A copy of a DA Form 4187 dated 25 October 1988, on file in the applicant's personnel record, shows his status was changed from returned to military control to present for duty at the Personnel Control Facility, Fort Ord, California, with an effective date of 19 October 1988.

12.  On 31 October 1988, court-martial charges were brought against the applicant for absenting himself without authority from his unit from 29 March 1988 through 17 October 1988.  The applicant acknowledged these charges on the same date.

13.  On 31 October 1988, prior to making a request for discharge, the applicant received legal counseling.  The applicant was advised of the basis for the contemplated trial by court-martial and the maximum 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.

14.  On 31 October 1988, 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.  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 (emphasis added).  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.

15.  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 Veterans Administration 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.

16.  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.

17.  The applicant's request for discharge for the good of the service and the recommendations made by the chain of command were reviewed by the Staff Judge Advocate on 8 November 1988.  The Staff Judge Advocate concurred with the applicant's request and the recommendations of the chain of command.

18.  On 16 November 1988, the applicant's discharge for the good of the service was approved by the appropriate authority.  The approving authority directed that the applicant be issued a discharge certificate under other than honorable conditions.

19.  On 2 December 1988, 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 his service characterized as under other than honorable conditions.  The applicant had completed 5 months and 3 days of net active service with time lost for the periods 18 January 1988 through 27 January 1988 and 29 March 1988 through 16 October 1988.  Item 26 (Separation Code) shows the applicant 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, 3B and 3C."

20.  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.

21.  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.

22.  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. 

23.  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.

24.  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.

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 returned to his unit after being apprehended by military authorities.  He again absented himself without authority from his new unit located in Germany and was subsequently dropped from the rolls of his organization.  He remained absent without leave for the period from 29 March 1988 through 16 October 1988 when he was again apprehended by military authorities.

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, 3B, and 3C” in accordance with applicable regulation in effect at the time of his discharge.  The RE Codes assigned the applicant were appropriate for the discharge requested and approved.

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 applicant's contention that his youth and immaturity impacted his ability to serve successfully was considered.  The applicant was over 17 years of age at the time of his enlistment in the Regular Army.  There is no evidence that he was any less mature than other Soldiers of the same age who served successfully and completed their term of service.

8.  The applicant's statement that he has matured, has become more stable, has gotten married and has a good employment history is acknowledged.  The applicant's report that he is completing nursing school in March 2010 and wishes to serve his country as a nurse in critical times is commendable; however, these statements are not sufficient to mitigate the type of conduct he displayed while he served on active duty. 

9.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general, under honorable conditions, 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)                                         AR20090003628





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ABCMR Record of Proceedings (cont)                                         AR20090003628



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