IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100011217 


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 under other than honorable conditions (UOTHC) discharge to a general discharge (GD) and that his reenlistment eligibility (RE) code be changed.

2.  The applicant states, in effect, that he was misled by his recruiter, Sergeant (SGT) D-----------, into enlisting for infantry training under the impression that after completing initial entry training he would be recruited for service in another field, such as aviation.  After learning this was not going to happen, he eventually decided to go absent without leave (AWOL), and after being returned to military control, he chose to get out of the Army.  

3.  The applicant provides two self-authored statements, two letters of support, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and a DD Form 215 (Correction to DD Form 214).

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 (USAR) in the Delayed Entry Program on 24 February 1979.  On 21 August 1979, he was discharged from the USAR, and he enlisted in the Regular Army (RA) for a period of 4 years on 
22 August 1979.  His enlistment packet shows his date of birth was 13 July 1960.  He was age 18 when he enlisted in the USAR and age 19 when he enlisted in the RA.  

3.  The applicant's enlistment packet contains a DA Form 3286-40 (Statements for Enlistment - Delayed Entry Program) showing he chose the U.S. Army Airborne enlistment option with a cash bonus of $2,500 and school course 11B1O - Infantryman.  Item 2 (Understanding) of the second page of this form contains the following statement:

I have read and understand each of the statements above and the statements contained in the DD Form 1966, signed by me, and understand that they are intended to constitute all promises whatsoever concerning my enlistment in the US Army Reserve (USAR).  Any other promise, representation, or commitment made to me in connection with my enlistment is written below in my own handwriting or is hereby waived (if none, write "None.")

4.  The word "none" is handwritten below the statement and the form bears the applicant's signature.  

5.  The enlistment packet does not show the applicant was promised an opportunity to be trained or serve in any military occupational specialty (MOS) other than 11B (Infantryman).    

6.  From 29 August 1979 to on or about 13 December 1979, the applicant was assigned to Fort Benning, GA, to complete one station unit training (OSUT) and basic airborne training.  

7.  On 21 December 1979, he was assigned to Company A, 2d Battalion (Airborne), 505th Infantry, Fort Bragg, NC with duty in MOS 11B.

8.  A DD Form 458 (Charge Sheet) shows that, on or about 7 April 1980, the applicant left Company A, 2d Battalion (Airborne), 505th Infantry, located at Fort Bragg, NC, in an AWOL status.  

9.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was AWOL from 7 April through 11 September 1980.  

10.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214.  The form shows, on 16 January 1981, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, with a UOTHC Discharge Certificate.  Item 29 (Dates of Time Lost During this Period) shows time lost from 7 April to   11 September 1980.  

11.  A DD Form 215, dated 18 July 1984, corrected item 27 (RE Code) of his 
DD Form 214 to show the codes of "RE-3," "RE-3B," and "RE-3C."

12.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  In the first of two self-authored statements, the applicant indicates:

	a.  He informed his recruiter of his interest in an Army job associated with flying in or piloting aircraft.  After taking the entrance test he was told that he qualified for any field he wanted, but first had to go into "infantry and advanced infantry school."  He volunteered for airborne school and he was told that "after basic training and advance training, which everyone who had to go through, there would be other recruiters coming around asking for persons interested in fields such as aviation, and recruiting for those jobs."  

	b.  After he completed training, he asked his first sergeant about the recruiters coming around for other specialties and he was informed this would not happen and that he would be an infantryman for the next 4 years.  After he was assigned to the 2nd Battalion, 505th Infantry, he discussed this issue with a company commander and was told if he was unhappy about not getting what he was expecting he should go AWOL.  He did not feel that going AWOL was the right thing to do, but on the way back to his unit after being at home on leave, he decided to turn around and return home.  

	c.  After returning home, he was eventually arrested and returned to military control.  He was sent to Fort Dix, NJ, where he was informed of possible court-martial proceedings.  During processing at Fort Dix, he had the option of getting into one of two lines.  One line was designated for individuals who wanted to get out of the Army and the other for individuals who wanted to stay in.  He asked if he would be able to change jobs if he stayed in and was informed that not only would he not be able to change jobs, he would also serve jail time if he stayed in.  He chose to get out of the Army.

	d.  He expected a formal court proceeding, which did not happen.  There was no attorney asking him about the issues that led to his decision, nor was there a judge.  He signed the paperwork presented to him, was given the money owed to him by the Army, and asked to leave Fort Dix immediately.

14.  In his second self-authored statement, the applicant states that the presumption of regularity that might normally permit the Board to assume that the Army acted correctly in characterizing his service does not apply to his case because of the evidence he has submitted.  He further states:

	a.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a UOTHC discharge.

	b.  His enlistment option was not satisfied or waived.

	c.  He received awards and decorations.

	d.  His conduct and efficiency ratings were good.

	e.  He tried to serve and wanted to serve, but just could not or was not able to.

	f.  His ability to serve was impaired by his youth and immaturity.

	g.  His record of AWOL is a minor and isolated offense.

15.  The letters of support provided by the applicant commend him as a talented, helpful, dependable and honest individual.  

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


17.  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.

18.  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.

19.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, provided the RE codes for use in item 27 of DD Form 214.  An RE-3 code applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation.  The disqualification was waivable; however, those individuals were ineligible for reentry without a waiver.  The regulation defined the RE codes assigned to the applicant as follows:

* RE-3:  Not eligible for reenlistment unless waiver consideration is permissible and is granted.  

* RE-3B:  Not eligible for reenlistment unless waiver consideration is permissible and is granted.  This code was applicable only to persons who had time lost during their last period of service.

* RE-3C:  Not eligible for reenlistment unless waiver consideration is permissible and is granted.  This code was applicable only to persons who did not meet the grade requirement in basic eligibility criteria.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge and change of his RE code.

2. The evidence of record does not show the Army failed to fulfill any promises made to the applicant in his enlistment contract.  He enlisted for infantry and airborne training, and he successfully completed that training.  His enlistment documents do not show that he was promised any additional training.  His enlistment documents do show that when given the opportunity to enter any other promise, representation, or commitment made to him in connection with his enlistment, he entered "None."  

3.  Regardless of whether or not a recruiter misled him, every Soldier who has completed initial entry training has a basic understanding of the repercussions of committing an offense punishable under the Uniform Code of Military Justice (UCMJ).  If the applicant felt strongly that all provisions of his enlistment contract had not been honored, he could have sought legal remedies.  Instead, he admits that he chose to go AWOL. 

4.  Being AWOL is an offense punishable under the UCMJ with a punitive discharge.  When faced with the choice of staying in the Army and facing a court-martial or being discharged, the applicant chose to be discharged.      

5.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process. 

6.  Though the applicant states his ability to serve was impaired by his youth and immaturity, the record shows he was 18 years old when he enlisted in the USAR and 19 when he enlisted in the RA.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.    

7.  The applicant was AWOL for over 5 months.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.  

8.  The evidence of record shows the applicant would have required a waiver to reenter the Army, which is reflected in the reentry codes assigned to him.  He is not entitled to correction of his RE codes.

9.  In view of 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)                                         AR20100011217



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ABCMR Record of Proceedings (cont)                                         AR20100011217



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