IN THE CASE OF:	  

		BOARD DATE:	        15 September 2009

		DOCKET NUMBER:  AR20090006292 


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 an upgrade of his Under Other than Honorable Conditions discharge and his reentry eligibility (RE) code so he will be eligible to reenter the Army.

2.  The applicant states, in effect, that his discharge is inaccurate because the person who was discharged 19 years ago is not who he is today.  The applicant also states that the decisions he made then were very immature.  He continues that, in time, the decisions proved to be irrelevant because he had no control over his wife and was unable to stop their divorce.  The applicant states that he went absent without leave (AWOL) in an attempt to resolve their issues and save their marriage.  He adds that he was misled the whole time about the status of their relationship and his wife was asking him to return home, never thinking that he actually would.  The applicant further states that they were both surprised when he returned home and discovered that she was engaged to be married to someone else.  The applicant continues that he has applied to reenter the Army and needs to have his current status upgraded in order to make that possible.  The applicant concludes that he is an Emergency Medical Technician and would like to reenter the Army as a field medic.

3.  The applicant provides a copy of his Divorce Final Judgment and Decree in support of this 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.  The applicant's record shows that he was born on 22 November 1969.  He participated in the Delayed Entry Program from 26 October 1989 through 30 January 1990.  On 31 January 1990, at the age of 20 years, 2 months, and 10 days, the applicant enlisted in the Regular Army.  The applicant's record shows that he did not complete advanced individual training and was not awarded a military occupational specialty.  Although the applicant enlisted in the rank of private (PV2)/pay grade E-2, his rank at the time of his separation was private (PVT)/pay grade E-1.  He was discharged on 18 October 1990 and credited with 6 months and 1 day of active duty service.  

3.  DA Form 4187 (Personnel Action), dated 12 June 1990, changed the applicant's duty status from present for duty to AWOL effective 11 June 1990.

4.  DA Form 4187, dated 11 July 1990, changed the applicant's duty status from AWOL to dropped from the unit rolls effective 11 July 1990.

5.  DA Form 4187, dated 11 July 1990, changed the applicant's duty status from dropped from the rolls to attached/present for duty 28 August 1990 following his surrender to military authorities at Fort Benning, Georgia.

6.  Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky, Memorandum, Subject:  Admission of AWOL for Administrative Purposes, shows the applicant voluntarily declared that he was AWOL from the United States Army from 11 June 1990 to 28 August 1990.

7.  A DD Form 458 (Charge Sheet), dated 29 August 1990, shows the applicant was charged with AWOL, for violation of Article 86 of the Uniform Code of Military Justice (UCMJ), for departing AWOL on 11 June 1990 and remaining so absent until on or about 28 August 1990.
8.  On 30 August 1990, 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 discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  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 of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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.

9.  On 10 September 1990, the separation authority approved the applicant's request and directed that he be discharged under other than honorable conditions and reduced to PVT/E-1 prior to execution of the discharge.

10.  Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 274-382, dated 1 October 1990, assigned the applicant to the United States Army Transition Point, effective 18 October 1990.  These orders also discharged the applicant effective 18 October 1990.

11.  Item 24 (Character of Service) of the DD Form 214 issued to the applicant upon separation shows he was discharged under other than honorable conditions.  Item 25 (Separation Authority) indicates he was separated under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's DD Form 214 also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of KFS in Item 26 (Separation Code) and an RE code of 3 in Item 27 (Reentry Code).

12.  The applicant provides a copy of the final judgment and decree of his divorce from his former spouse which was entered and filed by the Superior Court of Muscogee County, Georgia, on 5 April 1991.

13.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

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 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.  

16.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

17.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated, in pertinent part, that the SPD code KFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table indicated that RE code 3 was the proper code to assign members separated with SPD code KFS.

18.  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 (USAR).  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable and the individual is eligible for reentry if a waiver is granted.  RE code 4 applies to persons separated from their last period of service who have a nonwaivable disqualification and are ineligible for reentry.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and his RE code should be changed so he will be eligible to reenter the Army was carefully considered and found to lack merit.

2.  The applicant's records show he was over 20 years of age at the time of his enlistment and at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation. 

3.  Evidence of record shows that the applicant went AWOL and was subsequently dropped from the rolls of his unit.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

5.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

7.  Evidence shows the applicant was assigned the appropriate RE code of 3 at the time of his discharge.  Therefore, he is not entitled to an upgraded RE code.

8.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20090006292





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ABCMR Record of Proceedings (cont)                                         AR20090006292



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