IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007204 


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 an upgrade of his discharge to an honorable discharge.

2.  The applicant states he did something very stupid and regrets doing so.  He was not thinking clearly.  He was having marital problems and thought that by giving her more material things and getting more money, he could help save their marriage.  They were later divorced and he regrets disgracing himself, his friends, and the Army.  Nevertheless, he was a very dedicated Soldier during his military service as evidenced by his achievements.  He almost attained a perfect score on the Army Physical Fitness Test during basic training and he was in an honor platoon.  He scored expert with his assigned rifle and the hand grenade and received multiple letters of achievement and Army Achievement Medals.  He was the go-to guy at the time and he was placed in charge of the mess section.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the Regular Army (RA) on 5 January 1987.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.  He was assigned to the 3rd Battalion, 41st Field Artillery, Fort Stewart, GA.

3.  His records further show he was awarded the Army Commendation Medal, Army Achievement Medal (2nd Oak Leaf Cluster), Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 24 January 1990, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his apathy and refusal to attend the Primary Leadership Development Course.  He was furnished a copy of this bar and elected to submit a statement in his own behalf, but did not do so.  His bar was ultimately approved by the approval authority.

5.  On 13 September 1990, subsequent to a military police investigation, court-martial charges were preferred against the applicant for two specifications of conspiracy to commit larceny and two specifications of larceny.

6.  On 19 September 1990, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

7.  On 24 September 1990, his immediate, intermediate, and senior commanders recommended disapproval of his discharge due to the seriousness of his offenses.  They all recommended his trial by court-martial.

8.  On 3 October 1990, the separation authority disapproved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.

9.  On 5 October 1990, he pled guilty at a special court-martial to two specifications of conspiracy to commit larceny of U.S. currency and two specifications of larceny of U.S. currency.  He was sentenced to reduction to private (PV1)/E-1 and confinement for 6 months.  He was subsequently confined at the Personnel Confinement Facility, Fort Knox, KY.

10.  On 26 October 1990, the convening authority approved a lesser punishment of 3 months confinement and reduction to PV1/E-1, and he ordered the sentence executed.

11.  On 20 December 1990, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation
635-200, paragraph 14-12(b), for misconduct - pattern of misconduct.  Specifically, the immediate commander cited the applicant’s theft and remarked that in his opinion, the applicant's retention would have had an adverse impact on military discipline, good order, and morale.

12.  On 20 December 1990, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement in his own behalf.

13.  He further acknowledged that he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws.

14.  On 20 December 1990, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12(b), for misconduct - pattern of misconduct, with the issuance of a general, under honorable conditions discharge.  He further requested a waiver of the requirements for rehabilitation and indicated that further rehabilitation would not have been feasible and would have created serious disciplinary problems or a hazard to the mission and the member.

15.  On 30 January 1991, his intermediate commander recommended approval of his separation from the Army for misconduct with the issuance of a general, under honorable conditions discharge.

16.  On 1 February 1991, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct and directed he be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 28 February 1991.

17.  He was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) in connection with this discharge.  However, for unknown reasons, the DD Form 214 he was issued shows he was discharged on 28 February 1991, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an under other than honorable conditions character of service.  He completed a total of 3 years, 11 months, and 21 days of creditable military service and he had 74 days of time lost.  Specifically, this form shows the following entries:

* Item 24 (Character of Service) shows "Under Other Than Honorable Conditions"
* Item 25 (Separation Authority) shows "AR 635-200, CHAP 10"
* Item 26 (Separation Code) shows "KFS"
* Item 27 (Reentry (RE) Code) shows "3"
* Item 28 (Narrative Reason for Separation) shows "For the Good of the Service - In Lieu of Court-Martial"

18.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

19.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

	c.  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

	d.  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.

20.  Army Regulation 635-200 further states, in pertinent part, 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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible unless a waiver is granted. 

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of, separation from active duty.  The "JKA" SPD code is the correct code for Soldiers separating under Army Regulation 635-200, chapter 14-12(b), by reason of misconduct - pattern of misconduct.

22.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD/RE code and a corresponding SPD/RE code.  The SPD code of "JKA" has a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  However, the separation authority disapproved his request.  He was subsequently convicted by a special court-martial for his offenses.

3.  Subsequent to his conviction, and based on his misconduct, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b(2), with a general discharge.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There is insufficient evidence to warrant an upgrade of his character of service to fully honorable.

5.  Nevertheless, it appears that the transition center that prepared his DD Form 214 improperly processed it as if he was discharged under the provisions of Army Regulation 635-200, chapter 10 instead of chapter 14.  As such, the transition center annotated the applicant's DD Form 214 with the incorrect character of discharge, separation authority, SPD code, and narrative reason for separation.  Therefore, the applicant is entitled to reissuance of an administratively correct DD Form 214 that shows the appropriate codes and reason for separation as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 reissuing him a new DD Form 214 with the following corrections:

* Item 24 to show "Under Honorable Conditions - General"
* Item 25 to show "AR 635-200, CHAP 14, PARA 14-12b(2)"
* Item 26 to show "JKA"
* Item 28 to show "Misconduct - Pattern of Misconduct"

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 upgrading his character of service to honorable.



      ___________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)                                         AR20100007204



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ABCMR Record of Proceedings (cont)                                         AR20100007204



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