IN THE CASE OF:	  

		BOARD DATE:	    10 June 2010

		DOCKET NUMBER:  AR20090021187 


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 her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD) and correction of her reentry (RE) code.

2.  The applicant states she is trying to ascertain if her UOTHC discharge and
RE code can be corrected.  The DD Form 293 provided by the applicant indicates she is seeking an upgrade of her discharge in order to receive Department of Veterans Affairs (VA) healthcare benefits.  She also indicates she was willing to remain on active duty and serve her punishment; however, she was advised to get out of the Army.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of her 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 record shows she enlisted in the Regular Army (RA) 22 August 1979.  Upon completion of her initial entry training, she was awarded military occupational specialty (MOS) 71L (Administrative Specialist).

3.  Her DA Form 2-1 (Personnel Qualification Record) shows the applicant was promoted to private first class/E-3 on 22 August 1980, and this was the highest grade she attained while serving on active duty.  A second DA Form 2-1 on file shows she was reported absent without leave (AWOL) from 11 November 1980 through 25 January 1981 and accrued a total of 77 days time lost.

4.  On 12 May 1980, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.  The punishment included a reduction to private/E-1 (suspended for 90 days), forfeiture of $104.00 pay per month for 1 month, and 14 days of restriction and extra duty.

5.  On 9 September 1980, the applicant accepted NJP for being disrespectful towards her superior commissioned officer.  The punishment included a reduction to private/E-1 (suspended for 60 days), forfeiture of $104.00 pay, and 7 days of restriction and extra duty.

6.  On 10 December 1980, a DD Form 458 (Charge Sheet) preferred a court-martial charge against the applicant for violation of Article 86 (AWOL) of the UCMJ for departing AWOL.

7.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding her separation processing.  However, it does include a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to the applicant on 13 March 1981 showing she was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of “Administrative discharge conduct triable by Court-Martial” and her service was characterized as UOTHC.  At the time of her discharge she had completed 1 year, 4 months, and 5 days of active military service and she accrued 77 days of time lost due to AWOL.  The form also shows she was assigned a Separation Code (SPN) code of JFS and an RE code of RE-3B.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.
9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.

11.  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.

12.  Pertinent Army regulations provide 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 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  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-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  RE-3B, in effect at the time, indicated that a person had lost time during his last enlistment.

13.  Paragraph 4-14 of the current version of Army Regulation 601-210 states, in effect, that any applicant who was AWOL during their last period of service must have a waiver to enlist/reenlist regardless of the type of service or RE code assigned at separation.  The Recruiting Battalion commander is the approval authority for this waiver.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JFS was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, chapter 10, due to administrative discharge conduct trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table established at the time RE Code 3 as the proper RE code to assign to Soldiers for this reason.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board 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 requests that her UOTHC discharge be upgraded and RE code should be corrected.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge appears to be commensurate with her overall record.

3.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of her discharge.

4.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered her service unsatisfactory.  Therefore, she is not entitled to an upgrade of her discharge.

5.  The RE Code 3B, establishing the applicant’s ineligibility for enlistment/reenlistment, was correctly entered on her DD Form 214 in accordance with governing regulations.  There is no evidence of error or injustice.

6.  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 the aforementioned requirement.

7.  In view of the foregoing, the applicant's request should be denied.




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)                                         AR20090021187





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ABCMR Record of Proceedings (cont)                                         AR20090021187



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