BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20090021265 


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

2.  The applicant states, in effect, that he was falsely accused, but since he was young at the time when his commander told him to sign his discharge paperwork or go to jail he signed without realizing he was making a mistake.  He further states he is trying to get disability.

3.  The applicant provides no additional documentation 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's record shows he enlisted in the Regular Army on 3 December 1979 at the age of 21.

3.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not on file in his record.  The record does contain a DD Form 458 (Charge Sheet) showing that on
30 October 1980 court-martial charges were preferred against the applicant for violating the following articles of the UCMJ:

* Article 120 by taking indecent liberties with G---- G------, a female under
16 years of age, between 20 - 31 August 1980
* Article 134, by committing the offense of carnal knowledge with G---- 
G-------, between 6 - 20 September 1980

4.  On 5 December 1980, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed issuance of an Under Other Than Honorable Conditions Discharge Certificate with a separation program designator (SPD) code of "JFS" and reduction to the lowest enlisted grade.

5.  Although the specific facts and circumstances surrounding the applicant's discharge processing are not available for review, the evidence of record does include a properly-constituted DD Form 214 that contains the authority and reason for the applicant's discharge on 31 December 1980, in the rank/grade of private (PV1)/E-1.  The DD Form 214 the applicant was issued on the date of his discharge confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of administrative discharge conduct triable by court-martial.  It also shows he was assigned an SPD code of JFS and RE codes of RE-3C and 3.

6.  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.

7.  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.

8.  Army Regulation 601-210, in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  The regulation provided that prior to discharge or release from active duty, individuals would be assigned RE codes, based on their service records or the reason for discharge.  Chapter 3 of that regulation prescribed basic eligibility for prior service applicants for enlistment.  This chapter included a list of Armed Forces reentry codes, including RA RE codes.  It states,

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

* RE-3C applies to persons who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements of Army Regulation 601-280 (Army Retention Program), or who have been denied reenlistment under the Qualitative Retention Program.  The person is ineligible for enlistment unless a waiver is granted

9.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation program designators to be used for these stated reasons.  The regulation, in effect at the time, shows that SPD "JFS" as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as 
"Administrative discharge conduct triable by court-martial" and that the authority for discharge under the separation program designator was "Army Regulation 635-200, chapter 10."

10.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table, in effect at the time, shows the SPD code of "JFS" has a corresponding RE-3 code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he was young at the time was carefully considered and found to be without merit.

2.  The evidence of record shows that the applicant accepted discharge in lieu of court-martial.

3.  In the absence of evidence to the contrary, it is presumed that the applicant’s separation processing was accomplished in accordance with the applicable regulation.  This includes the assignment of his RE codes.  The SPD/RE cross reference table shows the SPD code of "JFS" with a corresponding RE code of "3."  The RE code of "3C" was also applicable based on his reduction to the lowest enlisted grade, making him ineligible for retention.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  The granting of veteran's benefits is also not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  Records show that the applicant was 21 years of age at the time of his last enlistment and 22 years of age at the time of his acts of indiscipline and offenses. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090021265



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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