IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20090020812 


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 27 October 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty) by:

* Upgrading his discharge to fully honorable
* Changing both his reenlistment eligibility (RE) code to "3" and his separation program designator (SPD) code to a more favorable code 
* Changing the narrative reason for separation to alcohol rehabilitation failure
* Granting travel and separation pay for him and his family members due to the change in his discharge 
* Adding the Primary Leadership Development Course (PLDC) Ribbon and the Army Good Conduct Medal (AGCM) (2nd Award)

2.  The applicant states his request is based on the Army Discharge Review Board's (ADRB) Case Report and Directive that shows the board voted to grant him a fully honorable discharge.  He adds he received a letter from the ADRB stating he was due some monetary benefits due to the change in his discharge.  The applicant states he received some money from the Defense Finance and Accounting Service for unpaid leave.  However, he believes he is also entitled to travel and separation pay for him and his family members.  

3.  The applicant maintains his SPD code, RE codes, and narrative reason for separation should be changed based on a signed contract with his counselor and commander indicating that if he failed the rehabilitation program he would be separated under chapter 9.  The applicant offers that his service to his country, loyalty, and selfless service to the Army outweighs the two convictions of driving under the influence (DUI) of alcohol during his 8 years of service.

4.  The applicant provides the following:

* A copy of his initial DD Form 214
* ADRB's Case Report and Directive
* His upgraded DD Form 214
* Excerpts from the Department of Defense (DoD) Financial Management Regulation
* Rehabilitation Team Meeting Report
* Noncommissioned Officer Evaluation Reports 
* A list of Criminal and Administrative Cases
* Orders awarding him the AGCM (Initial and 2nd Award)
* PLDC Certificate
* Separation Orders

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he enlisted in the Regular Army (RA) on 
12 October 1995.  He served 3 years and was honorably released from active duty on 11 October 1998.  He served in the Army National Guard prior to reentering the RA on 27 December 1999.

2.  On 20 November 2002, nonjudicial punishment was imposed against the applicant for physically controlling a vehicle with an alcohol concentration level of 0.10 grams per 210 liters of breath or greater.  

3.  On 13 January 2004, the applicant was enrolled in the Alcohol Substance Abuse Program (ASAP).  The command consequence for failure was listed as "Possible chapter 9 (Rehabilitation Failure) actions being taken."  

4.  On 4 March 2004, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for refusing to submit to a breath alcohol test and for DUI on 1 January 2004.  His blood alcohol test registered an alcohol level of 2.21 per milliliter.

5.  On 1 July 2004, the applicant received a GOMOR for DUI on 27 March 2004. His blood alcohol test registered an alcohol level of 1.86 per milliliter.



6.  Headquarters, 21st Theatre Support Command, Special Court-Martial Order Number 6, dated 22 November 2004, shows the applicant was charged with operating a vehicle while his driving privileges were revoked and physically controlling a vehicle with an alcohol concentration level of 0.10 grams or more of alcohol per 210 liters of breath.  The order states the proceedings were terminated on 29 September 2004 because the applicant requested a discharge in lieu of trial by court-martial pursuant to the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which was approved on 21 October 2004.  The order further states the applicant was issued an Under Other Than Honorable Conditions Discharge.  

7.  The applicant's discharge proceedings are not contained in his available military records.  However, his record contains a duly-constituted DD Form 214 that shows on 27 October 2004 he was discharged under the provisions of Army Regulation 635-200 chapter 10, in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He was assigned an SPD code of KFS and an RE code of 4.  He had completed 4 years, 10 months, and 1 day of creditable service under this enlistment and 3 years of prior service.

8.  The available evidence also he was awarded the Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar and Grenade Bar. 

9.  His initial DD Form 214, Item 14 (Military Education) did not list PLDC.

10.  On 9 June 2008, the ADRB upgraded the applicant's discharge under other than honorable conditions to a general discharge under honorable conditions.  However, paragraph IX (Board Discussion, Determination, and Recommendation) of the ADRB's Case Report and Directive incorrectly shows the board voted to grant relief in the form of a fully honorable.  This mistake has since been corrected to coincide with the "Board Action Directed" which was to change the applicant's characterization of service to general under honorable conditions.  The ADRB also restored the applicant's grade to E4, but elected not to change his reason for discharge citing that it was proper and equitable.  The ADRB notified the applicant by memorandum that the board voted to grant partial relief in the form of an upgrade of his characterization of service to general under honorable conditions.

11.  A Certificate, dated 9 March 2001, shows the applicant attended PLDC from 7 February to 9 March 2001 and successfully completed the course. 


12.  Permanent Orders B-271-51, dated 28 September 1998, show the applicant was awarded the AGCM (initial) from 11 October 1995 to 10 October 1998.  Additionally, Permanent Orders 023-209 dated 24 January 2004, show the applicant was awarded the AGCM (2nd Award) from 27 December 1999 to 
26 December 2002.  

13.  Orders 299-01, dated 25 October 2004, show the applicant was assigned to the Transition Center in Germany, effective 27 October 2004.  The order stated the applicant was not entitled to separation pay and his family members were not eligible for Transitional Health Care.  However, he was authorized travel, shipment of household goods, unaccompanied baggage and his privately owned vehicle to his home of record or his place of entry on active duty.  There is no indication the applicant had command sponsored dependents during his tour in Germany.  

14.  The applicant provided excerpts from the DoD Financial Management Regulation, Volume 7A, chapter 35 that pertains to "Entitlement to Readjustment Pay."  The "Rule" is applicable, in pertinent part, to Soldiers who have completed at least 5 years of continuous active duty immediately before separation.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to the ASAP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.  Nothing in the regulation prevents the separation of a Soldier who has been referred to ASAP under any other provision of the regulation.

16.  Army Regulation 635-200 (Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

17.  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.

18.  Army Regulation 601-210 (RA and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-1 permits immediate reenlistment if all other criteria are met.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  An RE code of “4” indicates separation from the last period of service with a disqualification which cannot be waived and ineligibility for reenlistment.

19.  Army Regulation 635-5-1 prescribes the specific authorities, reasons for separating Soldiers from active duty and the SPD codes to be entered on the 
DD Form 214.  This regulation provides, in pertinent part, that the SPD code of "KFS" applies to persons discharged for the good of the service in lieu of trial by court-martial.  

20.  The SPD Code/RE Code Cross Reference Table states that when the SPD code of "KFS" is assigned an RE code of 4 will be assigned.

21.  DoD Financial Management Regulation, Volume 7A, states that separation pay has been authorized to Military Service members of the RA and Reserve Component who have been involuntarily separated from active duty and have met each of the following conditions:

   a.  The member is on active duty or full-time National Guard duty and has completed at least 6 years, but less than 20 years of active duty (a period of active duty is continuous if it is not interrupted by a break in service of more than 30 days); and
   
   b.  The individual's service must be characterized as "honorable" or "general." 

22.  The regulation further states, in pertinent part, that military service members separated in lieu of trial by court-martial are not eligible for separation pay.

23.  Title 10, U.S. Code, section 1078, provides that the Secretary of Defense shall implement and carry out a program of continued health benefits coverage to members of the uniformed services who are discharged or released from active duty (or full-time National Guard duty), whether voluntarily or involuntarily, under other than adverse conditions, as characterized by the Secretary concerned.
24.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy and criteria concerning individual military awards.  Paragraph 5-6 of the awards regulation contains guidance on the Noncommissioned Officer Professional Development Ribbon (NPDR).  It indicates the ribbon was established by the Secretary of Army on 10 April 1981, as announced in Department of the Army General Order 15, dated 10 October 1990.

25.  Paragraph 5-6 of the awards regulation further states, in pertinent part, that the NPDR is awarded to members of Active Army, ARNG, and USAR for successful completion of designated NCO Professional Development Course.  Effective 1 August 1981, all Active Army, Army National Guard and Army Reserve Soldiers in an active status are eligible for award of the NPDR for satisfactory completion of the respective NCOES or RC-NCOES courses as follows:  Primary Level consist of the Primary NCO Course, Combat Arm (PNCOC), Primary Leadership Course (PLC), Primary Technical Courses (Services School – PTC), and Warrior Leader Course (WLC) formally called PLDC for award of the basic ribbon. The Basic level consist of the Basic NCO Course, Combat Arms (BNCOC) Basic Technical Courses.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues his discharge should be upgraded to fully honorable based on the ADRB's decision.  Although item IX of the ADRB's Case Report and Directive shows the board granted a fully honorable character of service, the board action directed that the applicant's characterization of service be changed to general under honorable conditions.  Additionally, on 9 June 2008, he was notified of the upgrade of his characterization of service to general.  Therefore, the mistake made in the ADRB's report is not sufficient justification to upgrade his discharge to fully honorable.

2.  The applicant also maintains his SPD code, RE code, and narrative reason for separation should be changed based on a signed contract with his counselor and commander indicating that if he failed the rehabilitation program, he would be separated under chapter 9.  A review of the Rehabilitation Team Meeting form shows that as a consequence of the applicant's failure of the ASAP, a possible chapter 9 action could be taken.  Based on this statement and the requirements for chapter 9 discharges, it was the commander's prerogative to pursue whatever separation action he determined was appropriate.  However, the applicant elected discharge for the good of the service in lieu of trial by court-martial.  Therefore, the narrative reason listed on his DD Form 214 is correct as constituted.

3.  Although the applicant's chapter 10 discharge packet is not in the available records, the presumption of regularity must be applied.  Further, court-martial orders confirm the proceedings were terminated due to the applicant's request for discharge in lieu of trial by court-martial.  Therefore, by regulation, the SPD code of KFS and the RE code of “4” are appropriate and his narrative reason for separation is correct.

4.  The applicant's records show he served 3 years in the RA and was honorably separated.  He subsequently enlisted in the ARNG and reentered the RA on 
27 December 1999.  He was separated on 27 October 2004 after completing 
4 years, 10 months, and 27 days of active duty.  As stated in the DoD Financial Management Regulation, in order to be entitled to readjustment pay the applicant must have completed 5 years of continuous active duty and 6 years for separation pay.  Additionally, the applicant was separated in lieu of trial by court-martial; therefore, he is not eligible for separation pay.

5.  The applicant requests entitlement to travel due to the change in his character of service.  His separation orders show he was authorized travel, shipment of household goods, unaccompanied baggage and privately owned vehicle to his home of record or his place of entry on active duty.  There is no indication that the applicant had command sponsored dependents who would also be entitled to travel.  In absence of documentation to show the applicant was not granted all due travel entitlements, there is an insufficient basis to approve his request.

6.  An available certificate shows the applicant successfully completed PLDC. Therefore, his DD Form 214 should be corrected to show the award of the NPDR.  Additionally, item 14 should be corrected to show he successfully completed PLDC, 4 weeks, March 2001.

7.  Permanent Orders 023-209 awarded the applicant the AGCM (2nd Award).  Therefore, his DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  adding to his 27 October 2004 DD Form 214 the award of the AGCM (2nd Award) and the NPDR; and

	b.  adding to item 14, PLDC, 4 weeks, March 2001.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the following:

   a.  upgrading his discharge to fully honorable;

   b.  changing his RE code to "3" and the corresponding SPD code;

   c.  changing his narrative reason for separation to alcohol rehabilitation failure; and 

   d.  granting travel and separation pay for him and his family members.




      _______ _  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)                                         AR20090020812



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ABCMR Record of Proceedings (cont)                                         AR20090020812



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