IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008570 


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 reentry eligibility (RE) code so he will be eligible to reenter the military.

2.  The applicant states, in effect, that he should be given an opportunity to prove himself and he should not be permanently banned from the military.  The applicant continues that he has learned from his mistake and it has enabled him to accomplish goals on both educational and professional levels.  He states that he has been working for John Deere for six years and the stability has proven his motivation and determination to succeed.  The applicant concludes that he will have a college degree soon.

3.  In support of this application, the applicant provides a copy of a Technical Certificate of Credit that was awarded to him by the Southwest Georgia Technical College upon successful completion of the Heavy Equipment Repair Technician Course on 20 December 2005.

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 enlisted in the Regular Army (RA) and he entered active duty on 18 November 1999.  Following completion of initial entry training, the applicant was awarded military occupational specialty (MOS) 13D (Field Artillery Data Systems Specialist).  The highest rank/grade the applicant attained while serving on active duty was private first class (PFC)/E-3.  However, his rank at the time of his separation was private (PV1)/E-1.  He was discharged on 26 September 2002 and he credited with 2 years, 10 months, and 4 days of active duty service.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for wrongful use of marijuana and overindulgence in intoxicating liquor or drugs which incapacitated him for the proper performance of his duties.

4.  The applicant's record also reveals numerous adverse counseling sessions for offenses to include:  failing to follow instructions, failing to obey regulations, failing to be at the proper place of duty at the proper time, being drunk on duty, wrongful use of a controlled substance (Ecstasy), and being absent without leave (AWOL).

5.  A DD Form 458 (Charge Sheet), dated 22 July 2002, shows the applicant was charged with:

	a.  two Specifications of violation of Article 86 of the UCMJ for:

		(1)  Specification 1 - departing AWOL from his unit for a period of five days; and

		(2)  Specification 2 - failing to go at the times prescribed to his appointed place of duty on three separate occasions.

	b.  one Specification of violation of Article 92 of the UCMJ for failing to obey a lawful order issued by a commissioned officer.

6.  The applicant's unit, battalion, brigade, and division commanders unanimously recommended the applicant's charges be referred to a special court-martial empowered to adjudge a Bad Conduct Discharge.

7.  A copy of the applicant's voluntary request for discharge is not contained in the available records.  However, the record does contain Headquarters, 3d Infantry Division (Mechanized), Staff Judge Advocate, Fort Stewart, GA, memorandum, dated 6 September 2002, Subject:  Request for Discharge in Lieu of Trial by Court-Martial, which shows that on 29 August 2002, the applicant consulted with legal counsel and he 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 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 - Enlisted Personnel).  The applicant's chain of command recommended approval of his request and that he be discharged under other than honorable conditions.  

8.  On 6 September 2002, 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.

9.  Headquarters, 3d Infantry Division (Mechanized), Fort Stewart, Orders
262-0019, dated 19 September 2002, assigned the applicant to the U.S. Army Transition Point, effective 26 September 2002.  These orders also discharged the applicant effective 26 September 2002.

10.  Item 24 (Character of Service) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 4 in Item 27 (Reentry Code).

11.  On 22 July 2003, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his under other than honorable conditions discharge to an honorable discharge.

12.  An Office of the Secretary of the Army (OSA) Form 172 (Military Review Boards - Case Report and Directive), dated 28 May 2004, shows that after carefully examining the applicant's record of service, the ADRB found that the applicant's misconduct was mitigated by his post-service accomplishments.  Accordingly, the ADRB voted to grant partial relief in the form of an upgrade of his characterization of service to general, under honorable conditions.  The ADRB also determined that the applicant's reason for discharge was proper and equitable and voted not to change it.  The ADRB concluded the applicant's misconduct and poor duty performance diminished the quality of his service below that meriting a fully honorable discharge.

13.  As a result, the applicant was issued a revised DD Form 214.  Item 18 (Remarks) of this form shows the applicant's characterization of service was upgraded on 28 May 2004 following an application dated 22 July 2003.  Item 24 of this form shows the applicant's character of service as "under honorable conditions (General)."  The applicant's SPD Code remained as KFS, his RE Code remained as 4, and the narrative reason for his separation remained as in lieu of trial by court-martial.

14.  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.

15.  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 4 was the proper code to assign members separated with SPD code KFS.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. 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 RE code should be upgraded so he will be eligible to reenter the military was carefully considered and found to lack merit.

2.  The applicant's record shows a disciplinary history that included acceptance of NJP under the provisions of Article 15 of the UCMJ on two occasions for wrongful use of marijuana and overindulgence in intoxicating liquor or drugs which incapacitated him for proper performance of his duties.  His record also shows numerous adverse counseling sessions for a variety of offenses. 

3.  The applicant's record shows he was charged with the commission of offenses 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.

4.  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.

5.  A review by the ADRB found that the applicant's misconduct was mitigated by his post-service accomplishments and voted to upgrade his characterization of service to general, under honorable conditions.  The ADRB also determined that the applicant's reason for discharge was proper and equitable and voted not to change it.  The ADRB concluded the applicant's misconduct and poor duty performance diminished the quality of his service below that meriting a fully honorable discharge.  As a result, the applicant was issued a revised DD Form 214, in which his character of service was changed to general, under honorable conditions, but his SPD Code, RE Code, and narrative reason for his separation remained unchanged.

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.  Further, the applicant's discharge accurately reflects his overall record of service.

7.  Evidence shows the applicant was assigned the appropriate RE code of 4 at the time of his discharge.  Therefore, he is not entitled to an upgraded of his 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; therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090008570



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008570



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1