IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090017258 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.  He also requests change of his reentry eligibility (RE) code to RE-1.

2.  The applicant states, in effect, that he was young and made a bad choice, that he paid his dues, and that he deserves a second chance.  He contends that he served for almost 10 years and he regrets his mistakes.  He indicates that he has been a model citizen since his discharge, that he is a police officer, that he serves on the police honor guard, and that he works with abused children.  He claims that he served his country with great pride and like any other person he encountered personal problems in his family life which took a great deal out of him.  He states that he was a good Soldier before all this happened and that he has two honorable discharges.

3.  The applicant provides letters of commendation; certificates of achievement; and certificates of training 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 was born on 7 April 1963.  He enlisted in the Regular Army (RA) on 19 June 1981 for a period of 4 years.  He trained as a wire systems installer and was honorably discharged on 29 January 1985 for immediate reenlistment.  He reenlisted on 30 January 1985 for a period of 3 years.  He was honorably discharged on 22 December 1987 for immediate reenlistment.  He reenlisted on 23 December 1987 for a period of 3 years.

3.  The available records show the applicant went absent without leave (AWOL) on 20 December 1988 and returned to military control on 7 February 1989.  He went AWOL on 8 March 1988 and returned to military control on 21 August 1989.  His records contain an incomplete charge sheet.

4.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a character of service of under other than honorable conditions on 
10 October 1989 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, in lieu of court-martial.  He had served a total of 7 years, 8 months, and 12 days of creditable active service with 164 days of lost time.

5.  His DD Form 214 shows the following:  Item 25 (Separation Authority) shows the entry "AR [Army Regulation] 635-200, CHAPTER 10."  Item 26 (Separation Code) shows the entry "KFS."  Item 27 (Reenlistment Code) shows the entry
"RE 3-3B-3C."  Item 28 (Narrative Reason for Separation) shows the entry "FOR THE GOOD OF THE SERIVCE-IN LIEU OF COURT-MARTIAL."

6.  In support of his application, the applicant provided letters of commendation, a certificate of achievement, and certificates of training he received while in the Army.  He also provided a certificate of achievement, a Philadelphia Police Department certificate, and certificates of training he received since his discharge.

7.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.
8.  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.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.

11.  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 in effect at the time stated the reason for discharge based on separation code “KFS” is “For the good of the service - in lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, chapter 10.

12.  Army Regulation 635-200 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 persons completing an initial term of active service who were fully qualified when last separated.

   b.  RE-3 applies to persons who are not qualified for continued Army service, but the disqualification is waivable.

   c.  RE-3B at the time applied to persons who had lost time during their last period of service.

   d.  RE-3C at the time applied to persons who completed over four months of service who did not meet the basic eligibility pay grade requirements of Army Regulation 601-280 (Army Reenlistment Program), chapter 2, or who had been denied reenlistment under the Qualitative Retention Process under Army Regulation 635-200, chapter 4.

13.  Army Regulation 601-280, in effect at the time, prescribed eligibility criteria and options available in the Army Reenlistment Program.  Chapter 2 of the regulation states, in pertinent part, that personnel in grades E-2 and below, regardless of years of service, are not authorized reenlistment.

14.  The SPD Code/Reentry Code Cross Reference Table, dated 2 October 1989, shows that Soldiers given a separation program designator of "KFS" would be given an RE code of 3.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted.  In addition, he completed over 7 years of service prior to going AWOL.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request for a discharge upgrade.

4.  The RE-3, RE-3B and RE-3C entries shown in item 27 on the applicant's DD Form 214 are correct and were applied in accordance with the applicable regulations.  Therefore, there is no basis for granting the applicant's request to amend 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)                                         AR20090017258



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017258



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1