IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090014918 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as that of a private (PV2)/E-2 instead of private (PVT)/E-1.  He also requests, in effect, an upgrade of his discharge and the following corrections:

	a.  item 24 (Character of Service),

	b.  item 25 (Separation Authority),

	c.  item 26 (Separation Code),

	d.  item 27 (Reenlistment (RE) Code),

	e.  item 28 (Narrative Reason for Separation), and

	f.  item 29 (Dates of Time Lost During This Period).

2.  The applicant states that before entering the service, his recruiter told him he would enter the Army as a PV2/E-2 if he recruited two high school graduates.  He did so but never received the rank or pay.  He addressed the issue with his sergeant but did not get an answer.  He feels his contract was breached and that there was no reason for him to stay in a career for which he had been deceived.

3.  The applicant did not provide any additional documentary evidence in support of his request.
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 enlisted in the Regular Army for a period of 4 years in the rank/grade of PVT/E-1 on 17 May 1979.  His DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows he enlisted under the U.S. Army Combat Arms Unit/Area of Choice Enlistment Option, 4th Infantry Division, Fort Carson, CO, and the Cash Bonus Enlistment Option ($3,000.00).  His contract did not stipulate any other promises.

3.  He entered active duty on 17 May 1979 and proceeded to Fort Knox, KY, for completion of basic combat and advanced individual training for military occupational specialty 19E (Tank Crewmember).

4.  On 2 July 1979, he departed his unit in an absent without leave (AWOL) status and on 31 July 1979, his commander dropped him from the Army rolls.  He surrendered to military authorities at Fort Knox, KY, on 6 August 1979.

5.  On 18 August 1979, he again departed his unit in an AWOL status but he returned to his unit on 4 September 1979.

6.  On 19 September 1979, court-martial charges were preferred against him for two specifications of being AWOL from on or about 2 July 1979 through on or about 6 August 1979 and on or about 18 August 1979 through on or about 4 September 1979.

7.  On 20 September 1979, he consulted with legal counsel.  Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further submitted a statement on his own behalf wherein he stated the reason he was AWOL was because he was having back problems and family problems, and that the service did him no good.

9.  On 10 October 1979, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he be reduced to the lowest enlisted grade (if he were serving in a pay grade above E-1) and issued an under other than honorable conditions discharge.  Accordingly, he was discharged on 26 October 1979.

10.  His DD Form 214 shows he was discharged on 26 October 1979.  This form further confirms he completed 3 months and 20 days of creditable active military service and he had 52 days of lost time.  This form also shows:

	a.  item 24, his discharge was characterized as under other than honorable conditions;

	b.  item 25, he was discharged under the provisions of chapter 10 of Army Regulation 635-200;

	c.  item 26, he was assigned the "JFS" separation code;

	d.  item 27, he was assigned RE-3 and RE-3B;

	e.  item 28, his narrative reason for separation as an administrative discharge, conduct triable by a court-martial; and

	f.  item 29, he had lost time from 2 July 1979 through 5 August 1979 and 18 August 1979 through 3 September 1979.

11.  His personnel records do not contain official orders that show he was promoted to a higher grade between his court-martial charges and his release from active duty.

12.  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.

13.  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.

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 states 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 Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army.  Table 3-1 of the regulation in effect at the time included a list of the Regular Army RE codes.  An RE-1 applied to Soldiers completing their terms of active service who were considered qualified to reenter the U.S. Army if all other criteria are met. An RE-3 applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  An RE-3B applied to Soldiers separated from their last period of service with lost time.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The SPD code "JFS" is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200 at the time.

17.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and the corresponding RE code.  The table in effect at the time of the applicant's discharge shows the SPD code "JFS" has a corresponding RE code "3."

18.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states items 4a and 4b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.  Item 29 of the version in effect at the time showed lost time.  This information was required and included time lost under Title 10, U.S. Code, section 972.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank/grade should be corrected and his discharge should be upgraded.

2.  The evidence of record shows he enlisted on 17 May 1979 under the station of choice and cash bonus options.  Nothing in his contract indicates the Army promised him a promotion to PV2/E-2.  Additionally, when the separation authority approved his discharge, he ordered his reduction to the lowest enlisted grade if he were serving in pay grade above E-1. 

3.  His records show 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 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated or lesser-included offense under the UCMJ.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  When the separation authority approved his discharge, he directed his reduction to the lowest enlisted grade.  His DD Form 214 correctly shows his rank and grade.  There is neither an error nor an injustice.

5.  This narrative reason for separation and corresponding SPD code were assigned based on the fact that he voluntarily requested discharge under chapter 10 in lieu of trial by court-martial.  Absent the AWOL and court-martial charges, there was no fundamental reason to process his voluntary request for separation.  The underlying reason for his release from active duty was his AWOL and subsequent court-martial charges.  The only valid narrative reason for separation permitted under that paragraph is "conduct triable by court-martial" and the corresponding SPD code is "JFS."  Both are correctly shown on his DD Form 214.

6.  The evidence of record further confirms his RE code was assigned based on the fact that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The RE code associated with this type of discharge at the time was an RE-3.  Additionally, since he had lost time in the form of AWOL, he also received the RE-3B code.  Therefore, the applicant received the appropriate RE codes associated with his discharge.

7.  With respect to his lost time, he was AWOL on 2 July 1979 and returned to military control on 5 August 1979.  He again was AWOL on 18 August 1979 and returned to military control on 3 September 1979.  Therefore, he had 52 days of lost time.  The dates of AWOL are correctly shown on his DD Form 214.  Most importantly, however, is the fact that the applicant had a 4-year contractual obligation that he did not fulfill.  His election to be discharged in lieu of trial by court-martial was a voluntary action.  He made his request for discharge of his own free will and indicated that he had not been subjected to any coercion whatsoever by any person.  He failed to fulfill the contractual obligation for which he volunteered.

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.  He failed to submit a shred of evidence that would satisfy this requirement.  Therefore, no relief may be granted.


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)                                         AR20090014918



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ABCMR Record of Proceedings (cont)                                         AR20090014918



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