IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009178 


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 to honorable.

2.  The applicant states he enlisted in the California Army National Guard (ARNG), transferred to the Texas ARNG, and he is currently serving in an Active Guard Reserve (AGR) status.  He offers that he is requesting an upgrade of his discharge for retirement purposes.

3.  The applicant provides copies of his DD Forms 214 (Certificate of Release from Active Duty), a request for waiver memorandum, ARNG enlistment documents, and AGR orders.

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 and entered active duty on 20 July 1988.

3.  The charge sheet and/or the facts and circumstances pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial are not contained in his available military records.

4.  His record contains a duly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, on 28 January 1994.  It shows his discharge was characterized as under other than honorable conditions.  The applicant's DD Form 214 further shows he completed 5 years, 6 months, and 9 days of total active service.  Item 26 (Separation Code) shows he was assigned a separation program designator (SPD) code of "KFS" and item 27 (Reentry Code) shows his reentry eligibility (RE) code as "3."

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

6.  The applicant provided a memorandum, dated 29 April 1999, that shows the California ARNG Military Personnel Deputy Director approved his request to waive his disqualification of RE code "3" and his SPD code of "KFS" for enlistment in the California ARNG.  He subsequently enlisted in the ARNG and, through a series of reenlistments, he is currently serving as a staff sergeant in the ARNG AGR Program.

7.  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 at any time after the charge has been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although a copy of the applicant's chapter 10 discharge packet is not in the available records, the presumption of regularity must be applied.  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 failed to submit evidence that would satisfy this requirement.

2.  The applicant's discharge under the provisions of chapter 10, Army Regulation 635-200, indicates he voluntarily requested discharge in lieu of a trial by court-martial.  Although the specific offense(s) are unknown, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel based on this record of indiscipline.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting the applicant's requested relief.

3.  Although the applicant's record shows he is currently serving as a staff sergeant in the ARNG and has been since his enlistment in 1999, the ABCMR does not correct records solely for the purpose of retirement.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on 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)                                         AR20100009178



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ABCMR Record of Proceedings (cont)                                         AR20100009178



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