IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20100001122 


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 that his discharge under other than honorable conditions be upgraded.

2.  He states, in effect, that as both a Hispanic male and the youngest child, he has always been very close to his family.  His mother has always had heart problems.  While he was attending basic training, he called home to check on his family and was informed that his mother had been was rushed to a hospital emergency room.  He panicked and informed his chain of command, but they took no action.  Being young and immature, he decided to take matters into his own hands without thinking of the consequences and departed his unit in an absent without leave (AWOL) status.  He understands it was wrong, but truly believes it was right for both himself and his family at the time.  His main goal is to enlist to serve his country and to join his wife as a Soldier.

3.  He provides copies of documents extracted from his mother's medical records.

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 was born on 16 February 1982.  He enlisted in the Regular Army on 1 November 2000 at the age of 18 years, 8 months, and 17 days.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/pay grade he attained while serving on active duty was private/E-1.

3.  He provides documents summarizing two occasions when his mother received treatment at Medical Arts Hospital located in Lamesa, Texas.

	a.  On 9 October 2000, she walked into the hospital's emergency room after injuring herself in a fall.  The examining physician noted she was limping and complained of pain in her back, right ankle, right knee, and right ring finger.  The physician determined she had no evidence of fracture, subluxation, significant disc space narrowing, mortis disruption, or dislocation.  He prescribed Extra Strength Tylenol and gave his mother guidance on how to self-treat her injuries.  She was released from the hospital 2 1/2 hours after she was admitted.

	b.  On 19 November 2000, she went to the hospital.  She told the examining physician she was fine until that morning when she began experiencing a persistent cough with mucus, chills, and chest pain when she coughed.  The condition had worsened during the last few hours and she decided to seek medical attention.  The physician diagnosed her condition as acute bronchitis and in light of her pre-existing medical condition, she had to be admitted to the hospital for further testing, treatment, and observation.  She was released from the hospital 3 days later on 22 November 2000.

4.  A review of his military personnel record reveals:

	a.  On 5 January 2001, he departed his unit in an AWOL status.

	b.  On 6 February 2001, he was dropped from the rolls of his unit.

	c.  On 7 May 2001, he was apprehended by civil authorities and returned to military control.

5.  A DD Form 458 (Charge Sheet), dated 23 May 2001, shows he was charged with one specification of being absent from his unit without leave.

6.  On 24 May 2001, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  His chain of command recommended approval of his request and that he be discharged under other than honorable conditions.

8.  On 3 January 2002, the separation authority approved his request and directed that he be issued an Under Other than Honorable Conditions Discharge Certificate.

9.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 30 January 2002 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 10 months and 28 days of active service and was credited with lost time during the period 5 January 2001 through 6 May 2001.  His DD Form 214 also shows that based on the authority and reason for discharge, he was assigned a separation program designator (SPD) code of KFS and a reentry eligibility (RE) code of 4.

10.  On 28 January 2005, the President of the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence, informed him the ADRB had determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason for his discharge was denied.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.  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.

12.  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.

13.  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.

14.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of KFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

15.  The SPD/RE Code Cross Reference Table also indicates that RE code 4 was the proper code to assign to members separated with SPD code KFS.

16.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes.

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation.

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable.

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and determined to be without merit.

2.  His record shows he was nearly 19 years of age at the time of his enlistment and 19 years of age at the time of his offenses.  However, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record also shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.  Additionally, he was appropriately assigned an RE code 4 based on his narrative reason for separation.  Therefore, he is not eligible for reentry into the Army.

6.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any 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)                                         AR20100001122



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100001122



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1