IN THE CASE OF:	  

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100009946 


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 be upgraded from under other than honorable conditions to general and his reentry eligibility (RE) code of 4 be upgraded to 3 to allow him to enlist.

2.  The applicant states he believes the record to be unjust for the following reasons:

* at the time of the discharge he was immature and did not understand the ramifications of his actions
* since the discharge he has matured, grown responsible, married, and had children
* the Army has relaxed enlistment standards and accepts people with pasts more clouded than his

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a copy of his DD Form 215 (Correction to DD Form 214)
* a self-authored statement
* five letters of recommendation in support of his request
* three newspaper articles on Army enlistment standards
* birth certificates for his two children



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 20 January 2000 3 days shy of his 18th birthday.  Records show he completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.

3.  On 9 December 2002, charges were preferred against the applicant for:

* wrongfully making a false statement while under oath
* soliciting a PFC to commit larceny
* wrongfully receiving stolen property

4.  On 9 January 2003, the applicant 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant 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 bad conduct or dishonorable discharge.  He further 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.

6.  The separation authority approved the applicant's request for discharge and directed that he receive a reduction to private/pay grade E-1 with a discharge under other than honorable conditions.  On 13 February 2003, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 3 years and 24 days of creditable active service.

7.  On 23 December 2004, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  In a self-authored statement the applicant states, in effect, that:

* he wants his discharge upgraded so he can enlist
* he was young, he made a mistake, and he compounded it by lying
* he took a PFC's belongings only to teach him a lesson
* he did not realize the consequences of his discharge
* he worked in construction for 4 years
* he is now married and has matured

9.  Five letters of recommendation provided by the applicant state, in effect, that he is a dedicated family man, he has learned from his mistakes, and he should be allowed to enlist.

10.  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.

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.  By regulation, an RE code of 4 is the proper code to assign to members who were separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded and his RE code of 4 changed to RE-3 was carefully considered.  It was determined that there is insufficient evidence to support this request.

2.  The applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service.  Records show the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant contends he made a mistake and took a PFC's belongings only to teach him a lesson.  However, available records do not support this contention.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Records show he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.

5.  The applicant's misconduct renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

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)                                         AR20100009946



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ABCMR Record of Proceedings (cont)                                         AR20100009946



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