IN THE CASE OF:	   

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100011897 


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 upgrade of his undesirable discharge and change to his reentry eligibility (RE) code.

2.  The applicant states he thinks that his undesirable discharge under Army Regulation 635-200, chapter 10, was unfair and unjust because he did not really get a chance to defend himself.  It was just not right to be put out with a bad discharge when he had no nonjudicial punishments (NJPs) under Article 15, Uniform Code of Military Justice (UCMJ), and no court-martial convictions.  He came home after serving the nation in Vietnam only to get kicked out.

3.  The applicant provides no additional documents.

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 Regular Army on 17 September 1971.  He completed training as an armorer/unit supply specialist and was advanced to the rank/grade of private first class (PFC)/E-3 on 17 January 1972.  He arrived in Vietnam on 24 March 1972 and he reenlisted on 26 May 1972.

3. The rater on the applicant's DA Form 2166-4 (Enlisted Efficiency Report) for the period ending February 1973 states "[Applicant's] attitude toward the U.S. Army is unsatisfactory, and should not be allowed to remain in service."

4.  The applicant's health record shows that on 2 January 1973, he was diagnosed as an opiate abuser.  He returned to the United States on 23 March 1973 on normal rotation.

5.  The applicant received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 10 April 1973 for two instances of failing to go at the time prescribed to his appointed place of duty.

6.  A DD Form 458 (Charge Sheet) shows he was absent without leave (AWOL) from 27 April 1973 to 29 May 1973 and from 4 June 1973 to 6 July 1973.  When charges were preferred for those offenses, the applicant consulted with counsel and on 24 July 1973, he requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of court-martial.

7.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws and that he could expect to encounter substantial prejudice as the result of such a discharge.  He indicated that the nature of his rights and the procedures and processes that would be necessary to convict him under the UCMJ had all been explained to him.

8.  On 17 August 1973, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate and reduction to private (PV1)/E-1.  On 20 August 1973, the applicant was discharged accordingly.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  He was assigned the separation program number (SPN) of 246 [Discharge for the good of the service) and RE code "4."

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

10.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses under the UCMJ.  A punitive discharge is authorized for any AWOL of more than 30 days.

11.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.

13.  Army Regulation 635-5-1 (SPN Codes), in effect at the time, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPN code 246 is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge for the good of the service - in lieu of court-martial.  The SPN/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPN code of 246.

14.  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 Regular Army (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.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge was unfair and unjust because did not really get a chance to defend himself.  It was just not right to be put out with a bad discharge when he had no NJPs and no court-martial convictions.  He came home after serving the nation in Vietnam only to get kicked out.

2.  The applicant was not kicked out of the Army without a chance to defend himself.  After consulting with legal counsel he voluntarily requested to get out of the Army to avoid a trial by court-martial.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations at the time.  There is no indication that his request was made under coercion or duress.

4.  His repeated AWOL offenses and subsequent voluntary request for discharge tends to show he was seeking a discharge but wanted to avoid a court-martial and the punitive discharge that he might have received.

5.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

6.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

7.  The applicant's RE code was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The RE code associated with this type of discharge is "4."  Therefore, he received the appropriate RE code associated with his discharge.

8.  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)                                         AR20100011897



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ABCMR Record of Proceedings (cont)                                         AR20100011897



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