IN THE CASE OF:	

		BOARD DATE:	       9 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007549 


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 under other than honorable conditions discharge (UOTHC) be upgraded to a general, under honorable conditions discharge (GD) and that his reentry (RE) code of RE-4 be upgraded to a more favorable RE code.   

2.  The applicant states, in effect, that based on the fact that he was young while serving in the military he didn't realize at the time the effects of going absent without leave (AWOL).  He states he regrets what he has done and feels as though he has failed himself, his family, and his country.  He further states that he is a better person now than he was back then and would like to prove to everyone including himself that he can do better.

3.  The applicant provides a self-authored statement 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. The applicant’s records show he was born on 8 December 1976 and enlisted in the Regular Army on 2 June 1997.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  His record also shows the highest rank that he attained while serving on active duty was specialist four (SP4). 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in Item 41 (Awards and Decorations) that he earned the Army Service Ribbon (ASR) and the Marksman Marksmanship Qualification Badge with Hand Grenade and Rifle (M-16) Bar during his tenure on active duty.  Item 21 (Time Lost [Section 972, Title 10, U.S. Code]) shows he accrued a total of 176 days of time lost while AWOL during the period 24 January 2000 through 17 July 2000.

4.  On 26 July 2000, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice for being AWOL from 24 January 2000 until on or about 18 July 2000.

5.  On 28 July 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a UOTHC discharge, and of the rights 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.

6.  In his request for discharge, the applicant 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a UOTHC discharge and he elected not to submit a statement in his own behalf.

7.  On 18 January 2001, the separation authority approved the applicant’s 
request for discharge and directed that he receive a UOTHC discharge.  On 
14 February 2001, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial.  Item 26 (Separation Code) confirms the applicant was assigned a Separation Program Designator Code of KFS and Item 27 (Reentry Code) shows he was assigned an RE-4 code.  

8.  On 12 December 2003, the Army Discharge Review Board (ADRB), after careful review of the applicant's military records and all other available evidence, determined the applicant's discharge was both proper and equitable.  Accordingly, the ADRB voted to deny his request for a change to his character or reason for discharge.

9.  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.  The regulation does allow the issue of a GD, under honorable conditions or an honorable discharge (HD) if the separation authority determines it is warranted based on the member's overall record of service; however, a UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

10.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

11.  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 of KFS is the appropriate code to assign to Soldiers separated under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table establishes RE-4 as the proper code to assign members separated with this SPD code.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UOTHC discharge and his RE code should be changed to a more favorable code based on the fact that he was young at the time of his misconduct and now regrets the mistakes he has made was carefully considered.  However, these factors are not sufficiently mitigating to warrant an upgrade of his discharge.
2.  He was 23 years old when he went AWOL.  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 in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ that authorized the imposition of a punitive discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request.  The separation authority approved his request and appropriately directed that he receive a UOTHC which was consistent with regulatory policy in effect at the time and accurately reflects the applicant's overall record of service.  

4.  The applicant’s record is void of any acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his accrual of 176 days of time lost due to being AWOL.  As a result, his overall record of service did not support the issuance of a GD or HD, nor does it support an upgrade at this time.

5.  By regulation, the RE-4 code assigned the applicant was the proper code to assign members separating under the provisions of chapter 10, Army Regulation 
635-200, in lieu of trial by court-martial.  As a result, the RE-4 code was and still is still is appropriate based on the authority and reason for his separation.  

6.  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.

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.



      _______ _   __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)                                         AR20090007549



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ABCMR Record of Proceedings (cont)                                         AR20090007549



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