BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020545 


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.

2.  The applicant states he was very young when he entered the Army.  He adds he has eight brothers, all of whom served in the U.S. Armed Forces, and he had a strong desire to follow their example.

   a.  He states he served as a tank crewman and received a number of awards, including the Army Good Conduct Medal (2nd Award), Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with (M-60) Machinegun Bar, and the Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar.

   b.  He states the offense for which he was charged was severe and the punishment he received was even more severe.  He also states the officer who was present received an honorable discharge.  He adds he would like a second chance.

3.  The applicant provides copies of his DA Form 2-1 (Personnel Qualification Record), DD Form 214 (Certificate of Release or Discharge from Active Duty), an email of Reentry Eligibility (RE) Codes, and a support letter from Mr. W------ H.
S------ II, a former Army officer.


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 military service records are not available to the Board for review.  However, there were sufficient documents provided by the applicant for the Board to conduct a fair and impartial review of his case.

3.  In support of his application, the applicant provides the following documents:

a. His DA Form 2-1 that shows in:

* item 5 (Oversea Service) he served in Germany from 10 March 1979 through 10 September 1981 and from 3 September 1982 through
21 September 1984
* item 6 (Military Occupational Specialties [MOS]) 19K2O (M1 Armor Crewman) was his primary MOS and 19E2O (M48-M60 A1/A3 Armor Crewman) was his secondary MOS
* item 18 (Appointments and Reductions) he was promoted to specialist five [pay grade E-5] on 24 January 1981
* item 27 (Remarks) - "RE-3, 3C NOT ELIG[IBLE] FOR RE-ENLISTMENT"
* item 35 (Record of Assignments) that he was discharged under other than honorable conditions on 24 September 1984

   b.  His DD Form 214 that shows he entered active duty this period on
10 October 1978.  He was 18 years of age at the time.  He reenlisted on 14 April 1981 and he was discharged on 24 September 1984.  At the time he had completed 5 years, 11 months, and 15 days of net active service this period and 7 days of total prior inactive service.  The DD Form 214 also shows in:

* item 4a (Grade, Rate or Rank) - PV1
* item 4b (Pay Grade) - E1
* item 12 (Record of Service), block h (Effective Date of Pay Grade)
28 August 1984
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) - Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal (2nd Award), Marksman Marksmanship Qualification Badge with (M-16) Rifle Bar, and Sharpshooter Marksmanship Qualification Badge with (M-60) Machinegun Bar
* item 21 (Signature of Member Being Separated) - the applicant's signature
* item 23 (Type of Separation) - Discharge
* item 24 (Character of Service) - Under Other Than Honorable Conditions
* item 25 (Separation Authority) - Army Regulation 635-200 [Personnel Separations - Enlisted Personnel], chapter 10
* item 26 (Separation Code) - KFS
* item 27 (Reenlistment Code) - RE 3, 3C
* item 28 (Narrative Reason for Separation) - For the Good of the Service - In Lieu of Court-Martial

   c.  An email message to the applicant from Mr. W------ B------, dated
15 December 2009.  He provides a list of U.S. Army RE Codes and states "[y]our RE-Code is 3, 3c on your DD-214 now scroll down and see what that say's [sic]…You were released for the good of the service, yet you could re-up with a waiver…That just don't seem right to me…Looks like it should have been a 4… Worth looking into by a former jag [Judge Advocate General] officer.  You might want to check that out with that reduction thing…"  The list shows:

* RE-3 - Individuals who are not qualified for continued Army service, but the disqualification is waiverable.  Ineligible for enlistment unless a waiver is granted.

* RE-3C - Individuals who have completed over 4 months service who do not meet the pay grade requirements of Chapter 2, or who have been denied enlistment under Qualitative Screening Process pursuant to Chapter 4, Army Regulation 600-200.  Ineligible for enlistment unless waiver is granted.  Applicable to persons who have completed over 8 months service who do not meet the prior grade and service criterion of the Qualitative Management Program (Army Regulation 600-200, chapter 4).

* RE-4 - Individuals separated from last period of service with a nonwaivable disqualification (refer to Army Regulation 601-280).  
Ineligible for enlistment except as provided for in paragraphs 2-7c and 2-7d.  (See waivable moral and administrative disqualification.)  Disqualification is nonwaivable.
   
   d.  A letter from Mr. W------ H. S------ II, who states he was a platoon leader in Troop G, 2nd Squadron, 11th Armored Cavalry Regiment (ACR), and also an executive officer from May 1982 to May 1985 in Bad Kissingen, Germany.  He attests to the applicant's excellent conduct, leadership, and proficiency.  He states "[i]t is to my dismay to find out that [the applicant] was not Honorable [sic] Discharge from the United States Army which is truly a mistake that the powers to be made in this decision."  Mr. S------ adds he was not in Troop G at the time of the incident, but he was still in the 2nd Squadron, 11th ACR.  He adds the applicant's discharge should have been up to the leadership of the 2nd Squadron and regimental commander of the 11th ACR.  He requests upgrade of the applicant's discharge to honorable.

4.  The Army Review Boards Agency Case Tracking System, Wang Legacy Data, shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge.  On 30 June 1986, the ADRB members unanimously voted not to change the character of service of the applicant's discharge.

5.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of "KFS" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.

6.  The SPD/RE Code Cross Reference Table, in effect at the time [emphasis added], shows RE codes "3, 3C" as the appropriate codes to be assigned in the applicant's case.  The current SPD/RE Code Cross Reference Table now shows that a Soldier who is issued an SPD code of "KFS" will be assigned an RE code of 4.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  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.

   b.  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.

   c.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was very young when he entered the Army and the punishment he received was too severe.

2.  The applicant's contention that he was young or immature is not supported by the evidence of record.  The applicant demonstrated the capacity for honorable service by the completion of training, more than 30 months of honorable service prior to reenlisting, and promotion to pay grade E-5.

3.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, the applicant's contention is not sufficiently mitigating to warrant relief.

4.  Absent evidence to the contrary, it is presumed that the applicant's 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 was warranted by the gravity of the offenses for which he was charged.  It is also presumed that it was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  Records show that on 30 June 1986, less than two years after the applicant's discharge, the ADRB confirmed that his discharge was proper and equitable.

6.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, there is no basis for granting the applicant's requested relief.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20090020545



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ABCMR Record of Proceedings (cont)                                         AR20090020545



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