IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004739 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded to a fully honorable discharge.  He also requests that his reentry (RE) code be upgraded accordingly.

2.  The applicant states that it was never his intent to be absent without leave (AWOL) or to leave the military.  He contends that he was under the impression that everything was fine with his leave and that all was well with his trying to stay in the Army; however, it was not.  He wants a second chance to prove that he is "for real."  He also states that he has tried to get his State Senator involved; however, he was told that based on previous decisions nothing could be done.  
 
3.  The applicant provides no documentary evidence 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.  On 2 June 2003, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 98H (Communications Interceptor/Locator).  He was subsequently assigned to the 2nd Battalion, 72nd Armored Cavalry Regiment, in the Republic of Korea.

3.  On or about 6 December 2004, the applicant went AWOL and on 5 February 2005 he surrendered to military authorities at Fort Benning, Georgia.  He was subsequently assigned to the Personnel Control Facility located at Fort Knox, Kentucky.

4.  On 10 February 2005, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, for being AWOL, during the period from on or about 6 December 2004 to 5 February 2005 (61 days).

5.  On 10 February 2005, 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 a UOTHC discharge, and of the procedures and rights that were available to him.  

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised and understood his rights under the UCMJ; that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran; and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  

7.  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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   



8.  On 1 March 2005, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge UOTHC.  On 11 March 2005, the applicant was discharged accordingly.  He had completed a total of 1 year, 7 months and 9 days of creditable active military service and he had accrued 61 days of lost time due to being AWOL.  Accordingly, he was assigned a Separation Program Designator (SPD) Code of KFS and an RE Code of 4.  His character of service was described as UOTHC.  

9.  On 13 September 2006, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

10.  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 UOTHC is normally considered appropriate.

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

12.  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 establishes RE code 4 as the proper RE code to assign Soldiers being separated in lieu of trial by court-martial.

13.  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.
14.  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.

15.  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 that his discharge should be upgraded, he never intended to go AWOL, and he did not want to be separated from the Army.  He asks for a second chance to serve.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no evidence of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on the applicant’s record of AWOL, his service clearly does not meet the standards of acceptable conduct for Army personnel.  His lost time renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either fully honorable or general under honorable conditions.

4.  The RE code of 4 establishing ineligibility for enlistment/reenlistment was correctly entered on his separation document in accordance with governing regulations.  There is no evidence of an error or injustice.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for the RE code of 4.  While the applicant’s desire to continue in the service to his country is noted, there are no provisions authorizing the change of an RE code for this purpose.

6.  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)                                         AR20090004739



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ABCMR Record of Proceedings (cont)                                         AR20090004739



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