BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100013830 


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 under other than honorable conditions discharge be upgraded.  He also requests that his separation date and reenlistment eligibility (RE) code be changed.

2.  He states, in effect, the above three entries are wrong.  He knows going absent without leave (AWOL) in April 1998 was wrong, but he was young and immature.  He is trying to reenter the military to correct the situation.

3.  His provides his:

* Birth Certificate
* Basic Combat Training Course Diploma
* Cannon Fire Direction Specialist Course Diploma
* Certificate for winning the Fort Sill, OK Basketball Championship
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 4 September 1997, for 3 years.  On the date of his enlistment, he was 19 years and 6 months of age.  He completed training and was awarded military occupational specialty 13E (Cannon Fire Direction Specialist).  

3.  On 25 July 1998, he was reported AWOL and on 24 August 1998, he was dropped from the rolls as a deserter.  He was returned to military control on 2 September 1998.  

4.  On 8 September 1998, a DD Form 458 (Charge Sheet) was prepared by the Commander, A Battery, Personnel and Support Battalion, Fort Sill.  He was charged with one specification of being AWOL from 25 July 1998 through 2 September 1998.

5.  On 10 September 1998, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  In making the request, he acknowledged "that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service."  He also acknowledged that he understood he could be discharged under other than honorable conditions, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 10 September 1998, the A Battery Commander recommended approval of the applicant's request and recommended that the applicant be discharged under other than honorable conditions.  The commander stated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  He was placed on excess leave on 10 September 1998.

7.  On 25 January 1999, the appropriate authority approved the applicant's request for discharge for the good of the service with an under other than honorable conditions discharge.  
8.  He was discharged in pay grade E-1 on 12 February 1999 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with 1 year and 4 months of net active service with 39 days of lost time. 
9.  Item 12b (Separation Date This Period) of his DD Form 214 shows 12 February 1999.  Item 26 (Separation Code) of his DD Form 214 shows "KFS" and Item 27 (RE Code) shows "RE-3."

10.  There is no evidence he requested assistance through his chain of command for any problems he was having during his period of service. 

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

12.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program), then in effect, provided that prior to discharge or release from active duty, individuals would be assigned RE codes based on their service records or the reason for discharge.  Chapter 3 of the regulation included a list of Armed Forces reentry codes, including Regular Army RE codes.  RE-3 applied to persons not qualified for continued Army service, but the disqualification was waivable.  

13.  Army Regulation 635-5-1 (Separation Program Designator Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designator (SPD) codes to be used for these stated reasons.  The regulation stated the SPD of "KFS" as shown on the applicant’s DD Form 214 was appropriate when the narrative reason for voluntary discharge was "for the good of the service in lieu of trial by court-martial" and the authority for discharge was Army Regulation 635-200, chapter 10.

14.  The SPD/RE Code Cross Reference Table, then in effect, provided instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also showed SPD codes with their corresponding RE codes.  The assignment of RE-3 was approved when the Soldier's record indicated the Soldier had lost time due to AWOL or confinement.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  The evidence of record shows he was 19 years and 6 months of age when he enlisted in the Regular Army.  He served from his enlistment in September 1997 until July 1998, without incident.  He was 20 years and 4 months when he departed AWOL.  The applicant's commander stated the applicant had become disillusioned with the military and his retention was not in the best interest of the Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their service obligations.  

2.  Upon his return to military control in September 1998, he was charged with one specification of being AWOL for 39 days and he voluntarily requested discharge in lieu of trial by court-martial.  He waived the opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged that he understood he could be issued an under other than honorable conditions discharge.  His request was approved on 25 January 1999 and he was discharged on 12 February 1999.  Therefore, his separation date on his DD Form 214 is correct.  He was appropriately assigned an RE code of 3 based on his record of service and reason for discharge.  

3.  The documentation submitted by the applicant in support of his request for correction to his RE Code and separation date was reviewed; however, the documentation provided neither probative evidence nor a convincing argument sufficient to support his request.   

4.  If he wishes to reenter military service, an RE code of "3" is waivable and he should seek the guidance of Armed Forces recruiters/career counselors in seeking such a waiver if he is otherwise qualified.

5.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

6.  In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

7.  In view of the foregoing, there is no basis for granting his request for an upgrade of his 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)                                         AR20100013830



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ABCMR Record of Proceedings (cont)                                         AR20100013830



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