BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016113


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 discharge to honorable
* change the reason for separation to "Convenience of the Government"
* change the Reentry (RE) Code to RE-1

2.  The applicant states:

* while in the Army, he had personal problems and turned to drugs/alcohol
* while in the Army, he was immature
* his post-service conduct has been exemplary, counseling youths on addiction

3.  In his typewritten statement, the applicant explains he enlisted because he had no money for college and he was jobless.  In the Army, he excelled.  He fired "expert" with the M-16 rifle and he was made a Hometown Recruiter out of Advanced Individual Training.  He won the 2nd Armored Division (AD) wrestling championship and he was runner-up in the post championship.  He also played tailback on his unit football team which won the 2nd AD championship.  He was selected to be the Commanding General's driver.  Unfortunately, he began to drink and received an off-post DUI (driving under the influence) conviction.  He went to Germany on Reforger and flipped a truck into a ditch.  His alcoholism got the best of him and cost him his career.  After he got out of the Army, he went to 


Alcoholics Anonymous and he has been sober since January 1992.  He has been a custodian with the Board of Education for 13 years.  He is married and owns his own home; and he works to help others who are addicted to alcohol and drugs.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and:

* letters of reference from the town mayor, school principal, teachers, co-workers, and the pastor of his church
* a criminal records check from the Ohio Bureau of Criminal Identification and Investigation
* documents showing he volunteered as a counselor with the Indian River (OH) Juvenile Correctional Facility

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 served in the Regular Army from 18 September 1979 to 20 June 1984, a period of 4 years and 7 months when his 2 months and 3 days of absence without leave (AWOL) are subtracted.

3.  The applicant was promoted through the ranks to Sergeant (SGT/E-5) before he began to experience disciplinary problems.  His Official Military Personnel File contains a record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for willfully disobeying a lawful general regulation on 19 December 1983, to wit: Installation Detention Facility and Unit Guard Special Orders, by transporting a prisoner in a privately-owned vehicle.  As punishment he received a reduction from SGT to Specialist (SPC/E-4) and a forfeiture of $100 pay for 1 month (suspended for 4 months).

4.  On 8 March 1984, the applicant went AWOL and did not return to military control until 11 May 1984.  On 15 May 1984, he was formally charged with being AWOL.  On 16 May 1984, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

5.  The applicant's request was accepted by the approving authority on 6 June 1984 and he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge on 20 June 1984.  He was assigned a separation program designator (SPD) code of KFS and RE-code 3, 3B, and 3C.

6.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

7.  The applicant submitted documents showing that he has no criminal record in Ohio.  He also submitted documents from the mayor, the school principal, teachers, and his pastor, all of which attest to his good character.

8.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  At the time of the applicant's separation, the SPD code of "KFS" was used to represent discharges for the good of the service in lieu of court-martial under chapter 10 of Army Regulation 635-200.

9.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  The cross reference table shows the SPD code and corresponding RE code.  During the applicant's separation, the SPD code of "KFS" had a corresponding RE code of RE-3.  A RE-code of 3B was assigned when a Soldier had lost time through being AWOL or confinement and a RE-code of 3C was assigned when a Soldier failed to meet the grade and service criteria.

10.  Army Regulation 635-200, then in effect, 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 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-6 included a list of the RA Reenlistment Eligibility Codes (RE codes).  An 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.  An 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.  An RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  

12.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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.

	b.  Paragraph 3-7b states that a General Discharge (GD) 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade to honorable, a change in the narrative reason for separation, and a change to his RE Code.

2.  The applicant was a junior non-commissioned officer when he violated a lawful general regulation and received NJP.  He was a Soldier with 4 years of experience when he went AWOL and formal court-martial charges were preferred.
3.  The applicant's conduct was not acceptable for a seasoned junior leader.  His voluntary request for separation under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  His under other than honorable conditions discharge was appropriate given the circumstances of his administrative discharge.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  The applicant's good post-service conduct is commendable; however, conduct alone is not sufficient to upgrade his discharge.  His narrative reason for separation is correct, and his RE code is the correct code for his narrative reason for separation.

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)                                         AR20100016113



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ABCMR Record of Proceedings (cont)                                         AR20100016113



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