BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090008796 


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 with his service characterized as under other than honorable conditions be upgraded to honorable, that his Reentry Code (RE Code) be changed to RE-1, and that the reason for his discharge be changed to "for the convenience of the Government."

2.  The applicant states, in effect, that he is requesting the upgrade for the purpose of employment and to become eligible for other benefits.  His record, he states, will prove he was a good and dedicated Soldier.

3.  In support of his request, the applicant provides a copy of a Self-Help Guide to Discharge Upgrading; an electronic request for his records he submitted to the National Personnel Record Center (NPRC), St. Louis, Missouri; and the reply he received from the NPRC.

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 enlisted in the US Army Reserve, for 8 years, on 30 December 1985.  On 26 August 1986, he enlisted in the Regular Army.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 19K (M1, Abrams Tank Armor Crewman).  

3.  The applicant had continuous honorable active service from 26 August 1986 to 22 March 1989 when he was honorably discharged for the purpose of immediate reenlistment.  The record shows the applicant reenlisted on 23 March 1989.

4.  Item 18 (Appointments and Reductions), of the applicant’s DA Form 2-1 (Personnel Qualification Record, Part II) shows he was advanced to the rank and pay grade of Specialist Four, E-4, on 1 November 1987.  This would be the highest rank and pay grade he would serve in while on active duty.

5.  A copy of a DA Form 31 (Request and Authority for Leave) shows the applicant was authorized excess leave on 30 September 1991 for an indefinite period.  The Remarks Section of the DA Form 31 contains the statement:  "If my application for discharge is approved, I will be discharged while in leave status.  Separation documents will be forwarded to my leave address.  This leave authorization will terminate on the effective date of my discharge."

6.  The applicant was discharged while he was on excess leave, in the rank and pay grade of Private, E-1, under the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 10, for the good of the service-in lieu of court-martial on 18 November 1991.  The applicant’s service was characterized as under other than honorable conditions and a RE Code of "3" was applied to his DD Form 214 (Certificate of Release or Discharge from Active Duty).

7.  On the date of his discharge, the applicant had completed 4 years, 7 months, and 4 days of creditable active military service, with time lost due to his absence without leave for the period 7 February 1991 through 23 September 1991.

8.  The applicant's discharge "packet" is not available in his service personnel record; however, the record contains the following information:

	a.  the applicant was assigned to Troop D, 1st Battalion, 12th Cavalry at Fort Knox, Kentucky.

	b.  the applicant was reassigned to Headquarters and Headquarters Company, 2nd Battalion, 64th Armor, located in Germany.

	c.  Section VII (Current and Previous Assignments), Item 35 (Record of Assignments), of the applicant's DA Form 2-1, shows the applicant departed from his previous unit at Fort Knox en route to his new unit in Germany on 7 February 1991.

	d.  Section VII, Item 35, of the applicant's DA Form 2-1, also shows the applicant failed to join his unit in Germany and was returned to military control at Fort Knox on 24 September 1991.

9.  The applicant's request for discharge is not available in his service record; however, it is apparent the applicant voluntarily submitted a request for discharge for the good of the service to avoid trial by court-martial.  In his request the applicant would have stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  He would have been required to state that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant would have been advised of the implications that were attached to his request.

10.  The applicant would have stated he understood that if his request were accepted, he could be discharged under other than honorable conditions and that he understood that as a result of issuance of such a discharge, he could be deprived of all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also would have had to understand that he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

11.  Prior to completing his request for discharge for the good of the service, the applicant would have been afforded the opportunity to consult with appointed counsel or counsel of his own choice and he would have been given the opportunity to submit a statement in his own behalf, which would accompany his request for discharge.

12.  As indicated in Item 6 above in this Record of Proceedings, the applicant was discharged while on excess leave, in the rank and pay grade of Private, E-1, under the provisions of Army Regulation 635-200, Chapter 10.  Item 26 (Separation Code) has a three character code "KFS" to shows the reason for his discharge; 
Item 27 (Reentry Code) shows a RE Code "3" was applied to his DD Form 214; and Item 28 (Narrative Reason for Separation), of the applicant's DD Form 214, shows he was discharged "for the good of the service-in lieu of court-martial."

13.  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.

14.  Army Regulation 635-200 set 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, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge with a Soldier's service characterized as under other than honorable conditions was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge 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.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation code to be used for these stated reasons on the DD Form 214.  The regulation shows the separation code of "KFS," as shown on the 



applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "for the good of the service-in lieu of trial by court-martial."  The authority for discharge under this separation code is Army Regulation 635-200, Chapter 10.

18.  Pertinent Army regulations provide that prior to discharge or release from active duty, Soldiers will be assigned reentry codes, based on their service records or the reason for discharge.  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 and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces reentry codes, including RA RE codes.

      a.  RE Code 4 applies to individuals not qualified for continued service due to being separated from the service with non-waivable disqualifications such as, as an example, a person with a HQDA or a local bar to reenlistment.

      b.  RE Code 3 applies to persons not fully qualified for continued Army service and personnel who are discharged, but the disqualification is waivable.

      c.  RE Code 1 applies to persons completing their term of service and who are considered fully qualified to reenter the Army.

19.  The SPD/RE Code Cross Reference Table, dated 2 October 1989, then in effect, provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD Code with a corresponding RE Code and states that more than one RE Code could apply.  The Soldier's file and other pertinent documents must be reviewed in order to make a final determination.  The SPD Code of "KFS" has a corresponding RE Code of "3."

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 evidence that would satisfy this requirement.

2.  The evidence of record shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service-in lieu of trial by court-martial, at his request.  In connection with such a discharge, the applicant was 

charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily and in writing, request separation from the Army in lieu of trial by court-martial.

3.  The evidence indicates that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and it is believed that the applicant was aware of that prior to requesting discharge.  The applicant’s entire record of service for the period under review was fully considered.  As a result, the reason for discharge and the characterization of service were both proper and equitable.

4.  The applicant now wants an upgrade of his discharge so that he can improve his employment opportunities and to receive benefits that are normally extended to former service members who were honorably discharged; however, it is reasonable to assume that the application he submitted clearly stated he understood that as a result of issuance of a discharge under other than honorable condition, he could be deprived of all benefits administered by the Department of Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant is advised that the Board does not upgrade discharges to improve an individual's employment opportunities and to allow individuals who were discharged with an under other than honorable conditions discharge to access benefits that are intended for honorably discharged veterans.

5.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his discharge to a fully honorable 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)                                         AR20090008796





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ABCMR Record of Proceedings (cont)                                         AR20090008796



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