IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100010843 


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 reentry eligibility (RE) code be changed from RE-4 to RE-1.

2.  He would like to have his RE code changed so he can enlist in the Air Force.  The applicant admits that he is guilty of the charges he faced and does not contend that his discharge was in error.  However, due to his alcoholism he was having marital problems.  He was repeatedly denied the opportunity to advance due to his alcoholism.  His superiors did not give him the help he needed.  These factors combined to lead him to rebel and created the situation that led to his separation.

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his request for discharge in lieu of trial by court-martial.

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 enlisted in the U.S. Army Reserve on 16 March 1999.  He served on initial active duty for training until 6 August 1999 and completed military occupational specialty (MOS) training as a 75B (Personnel Management Specialist).

3.  On 21 March 2000, he enlisted in the Regular Army, completed training, and was awarded MOS 13M (Multiple Launch Rocket System Crewmember). 

4.  On 9 September 2001, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly and creating a disturbance of a nature to bring discredit upon the Armed Forces.

5.  On 4 December 2001, court-martial charges were preferred against him under the following UCMJ articles:

* Article 80, for attempting to escape from military confinement
* Article 92, for violating or failing to obey a general order or regulation by drinking under age
* Article 108, for willfully damaging government property by writing obscene language on the wall of the military police holding cell
* Article 134, for being drunk and disorderly

6.  On 6 December 2001, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  He acknowledged that if his request for discharge in lieu of trial by court-martial were accepted, he would be reduced to pay grade E-1 prior to being discharged.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a discharge under other than honorable conditions.

7.  In concert with his request for separation, he submitted a statement requesting that leniency be granted in his case and that he be separated with a general discharge.  He stated that while at work, he always tried to work hard and do what he was told.  Unfortunately, he was also an alcoholic and his reliance on alcohol clouded his judgment and resulted in out-of-character behavior which had affected both his personal and professional life.  He stated that his wife could not cope with the stress of his financial troubles while trying to raise two children on just his income, his long hours in the field, no family support in the state of Georgia, and his increasing frequency of resorting to alcohol to numb his feelings about these problems.  When they separated and the possibility of divorce became a reality, he became very depressed and again drank alcohol to escape his depression.  He tried to seek treatment for his alcohol abuse, but unfortunately this treatment was too late to help him avoid his mistakes.

8.  On 7 December 2001, the discharge authority approved the applicant's request for discharge and directed that he be issued a discharge under other than honorable conditions with a reduction to the lowest enlisted pay grade.

9.  On 2 January 2002, the applicant was discharged in pay grade E-1 under other than honorable conditions with 1 year, 9 months, and 12 days of creditable service.  His DD Form 214 shows he was assigned a separation program designator (SPD) of KFS and an RE code of 4.

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as the proper code to assign to members separated with SPD code KFS.

11.  Army Regulation 601-280 (Army Retention Program) states that the RE codes contained on military discharge documents determine whether or not one may reenlist in a military service at a later time.  In general, those who receive an Army RE code of 1 may reenlist in the Army or another service with no problem.  Individuals with an Army RE code of 3 can normally reenlist but will probably require a waiver to be processed.  Individuals with an Army RE code of 4 are normally not eligible to reenlist in the Army or join another service.  Further, an RE-4 applies to persons separated in pay grade E-2 and below.

12.  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.

13.  The Manual for Courts-Martial states that voluntary intoxication not amounting to legal insanity, whether caused by alcohol or drugs, is not an excuse for an offense committed while in that condition.

14.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses for attempting to escape from military confinement under Article 80 and for failure to obey a general order or regulation under Article 92.

DISCUSSION AND CONCLUSIONS:

1.  He would like to have his RE code changed so he can enlist in the Air Force.  The applicant admits that he is guilty of the charges he faced and does not contend that his discharge was in error.  However, due to his alcoholism he was having marital problems and was repeatedly denied the opportunity to advance.  His superiors did not give him the help he needed.  These factors combined to lead him to rebel and created the situation that led to his separation.

2.  An indication that intoxication is a legally inadequate defense, both in the military and in society as a whole, is demonstrated by the fact that drunk drivers are held legally responsible for the results of their behavior even though they are shown to be alcoholics.

3.  The RE-4 code is appropriate not only for the reason for his separation, but also based on the fact that he was in pay grade E-1 at the time of separation.  In order to change the RE code, both the reason for his separation with the accompanying SPD code and his pay grade would also have to be changed.  The applicant has provided insufficient evidence to warrant any such consideration.

4.  In order to justify correction of a military record, 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 has failed to submit 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)                                         AR20100010843



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ABCMR Record of Proceedings (cont)                                         AR20100010843



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