IN THE CASE OF:	  

		BOARD DATE:	    20 January 2010

		DOCKET NUMBER:  AR20090013609 


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 change of Item 26 (Separation Code) and Item 27 (Reentry Code) on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  He also requests, in effect, upgrade of his general, under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states he believes that his record is unjust because his discharge was upgraded from an under other than honorable conditions (UOTHC) to a general, under honorable conditions discharge.  He states the accusation was false from the beginning and that is why his discharge was upgraded.  He wants his separation code and reentry code changed so he can continue to serve his country.  He continues by stating that these codes prevent him from several things he tries to do as a civilian.  His records do not contain any negative issues except this false accusation.  He states he can not enter the Reserve or anything.  He states he was a sergeant who was loyal and very disciplined.  He just wants to continue serving his country as a Soldier.  

3.  The applicant provides a letter from the Army Review Boards Agency, Support Division, St. Louis, MO, dated 10 February 2005; and a copy of his new and voided copy of his old DD Form 214 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 enlisted in the Regular Army (RA) on 23 February 1993.

3.  The applicant's discharge packet is not available for review.  However, the Army Discharge Review Board (ADRB) case summary indicates he had been changed with adultery on divers occasions between 21 May 1997 and 4 February 1998.  His old DD Form 214 shows he was discharged on 26 June 1998 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 for the good of the service – in lieu of trial by court-martial with issuance of a UOTHC character of service.  He completed a total of 5 years, 4 months, and 4 days of active military service.

4.  Item 26 of his DD Form 214 shows the separation code entry of "KFS."

5.  Item 27 of his DD Form 214 shows the reentry code of "3."

6.  The ADRB did not condone the applicant’s misconduct; however, based upon his overall length and quality of services and the time that had since elapsed since his discharge, the characterization of service was now inequitable.  The ADRB therefore upgraded his characterization of service to a general, under honorable conditions discharge on 17 December 2004.  As a result, the applicant was issued a new DD Form 214.  The ADRB also, however, found that the reason for his discharge was both proper and equitable.

7.  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.

8.  Paragraph 3-7a of the same regulation 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.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the separation program designator “KFS” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “For the Good of the Service – In Lieu of Trial by Court-Martial” and that the authority for discharge under this separation program designator is “Army Regulation
635-200, Chapter 10.”

10.  Table 2-3 (SPD/RE Code Cross Reference Table), in effect, at the time, established RE code 3 as the proper reentry code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with a separation code of "KFS."

11.  Army Regulation 635-200 further states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE 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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE–1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted.



DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, is presumed to have been administratively correct and in conformance with applicable regulations.

2.  Although the ADRB upgraded his character of service to general, under honorable conditions, the ADRB also found that the reason for his discharge was proper.  The ADRB did not upgrade his discharge because it found the accusation to be false.  There appears to be no basis for further upgrading his character of service to fully honorable and, as there still appears to be no reason to change his reason for separation, the originally issued separation code and reentry code are still appropriate.

3.  The applicant’s desire to have his reentry code of 3 changed so that he may continue to serve his country was carefully considered; however, it does not serve as a basis for changing a properly assigned reentry code, regardless of the Army’s current enlistment policies.

4.  The applicant's reentry code was assigned based on his narrative reason for separation and the narrative reason for separation was based on his request for voluntary discharge in lieu of trial by court-martial.  The applicant has not established a basis upon which this reason should be changed.  In view of the foregoing, there is no basis for granting this portion of the requested relief.

5.  The applicant's contentions were considered.  However, he has failed to show through the evidence submitted or the evidence of record that the separation code, reentry code, or character of service issued to him was administratively incorrect, in error or unjust.

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)                                         AR20090013609



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ABCMR Record of Proceedings (cont)                                         AR20090013609



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