IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090016502 


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, a change to his reentry (RE) code and an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states, in effect, he was a stupid kid and has lived in dishonor for the past 9 years.  He further states he was a new father and had to choose between his family and the military.  He adds that he wants an opportunity to correct his mistakes and desires to reenlist.

3.  The applicant provides no additional documentary evidence in support of this 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 and entered active duty on
2 January 1997, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  A DA Form 4187 (Personnel Action), dated 21 April 1999, shows the applicant departed absent without leave (AWOL) on 21 April 1999.

4.  A DD Form 616 (Report of Return of Absentee), dated 11 June 1999, shows the applicant surrendered to military authorities on 8 June 1999.

5.  On an unknown date, the applicant signed a statement admitting to being AWOL from 21 April 1999 to 9 June 1999 and from 10 June 1999 to 9 August 1999.

6.  On 18 August 1999, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 21 April through on or about 9 June 1999; and from on or about 
10 June through on or about 9 August 1999.

7.  On 18 August 1999, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and maximum permissible punishment under the UCMJ, the possible effects of a UOTHC discharge if a request for discharge were approved, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In his discharge request, he acknowledged that he understood he could be discharged UOTHC and furnished a UOTHC discharge certificate.  He also acknowledged that he understood he could be  deprived of many or all Army benefits, all benefits administered by the Department of Veterans Affairs (VA), and of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of the UOTHC discharge.  He elected not to submit a statement in his own behalf.

8.  On 31 July 2000, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200.  The separation authority directed the applicant receive a UOTHC discharge and that he be reduced to the lowest enlisted grade.  On 28 September 2000, the applicant was discharged accordingly.  

9.  The DD Form 214 issued to the applicant upon his discharge on 
28 September 2000, shows he was separated under the provisions of chapter 10 of Army Regulation 635-200, with a characterization of service of UOTHC.  It also shows that based on the authority and reason for his discharge, he was assigned a Separation Program Designator (SPD) code of KFS and an RE code of 4.  It also shows he completed a total of 3 years, 5 months, and 8 days of creditable active service and accrued 109 days of lost time due to AWOL. 

10.  On 20 April 2001, the applicant was notified the Army Discharge Review Board (ADRB), after carefully considering his entire military service record and the issues he presented, determined he had been properly and equitably discharged and it voted to deny his request for an upgrade of his discharge. 

11.  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.

12.  Paragraph 3-7a of the enlisted separations regulation provides that an honorable discharge (HD) 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.  Paragraph 3-7b 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 honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the Reserve. The regulation provides 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.  

14.  Chapter 3 of the enlistment program regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.  This regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.  RE–4 applies to persons not qualified for continued service because they were separated from the service with a non-waivable disqualification such as conviction and sentence of a court martial.  RE-1 applies to persons completing their term of service (ETS) who are considered qualified to reenter the Army, so long as all other qualifications are met.

15.  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 SPD code to be used for these stated reasons.  The regulation shows that the SPD of KFS as shown on the applicant's DD Form 214 is appropriate for voluntary discharge when the narrative reason for discharge is in lieu of trial by 
court-martial and the authority for discharge is Army Regulation 635-200, 
chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and his RE code changed because he was young and stupid at the time of his discharge and because he wants to reenlist was carefully considered.  However, the record shows the applicant successfully completed training and was awarded an MOS before committing the offenses that led to his discharge.  This clearly shows he had the maturity and ability to serve successfully had he chosen to do so.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses which were punishable with a punitive discharge under the UCMJ.  It further shows that after consulting with legal counsel and being advised of his rights and the effects of an UOTHC discharge, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

3.  Further, the applicant voluntarily requested discharge to avoid a trial by 
court-martial that may have resulted in his receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and accurately reflects his overall undistinguished record of service.  His record documents no acts of valor or significant achievement that would have supported the issue of an HD or GD by the separation authority, or that would support an upgrade of his discharge now.   
4.  By regulation, members separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial are assigned a SPD code KFS and RE code of 4.  The record confirms the applicant was properly assigned an RE-4 code based the authority and reason for his discharge and this code was and remains valid.  Absent a change to the authority and reason for his discharge, there is an insufficient evidentiary basis to support a change to his RE code.  

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)                                         AR20090016502



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ABCMR Record of Proceedings (cont)                                         AR20090016502



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