IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017560 


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 the reason for his discharge be changed to convenience of the government, the character of his discharge be upgraded to honorable, and that his reentry eligibility (RE) code be changed to RE-1.

2.  The applicant states improper information was included in the packet considered by his administrative separation board.  He further claims he requested a court-martial that was not granted and that he was promoted to sergeant first class/E-7.

3.  The applicant provides the following documents in support of his application:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* U.S. Army Reserve (USAR) discharge orders
* Army Times USAR and Army National Guard promotion selection article

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 record shows he served on active duty in the Regular Army (RA) from 7 June 1977 through 1 June 1983.  He was honorably separated in the rank of specialist five/E-5 and transferred to the USAR Control Group where he served until being honorably discharged in the rank of staff sergeant/E-6 on 2 September 1985.

3.  On 3 September 1985, the applicant enlisted in the USAR and entered active duty as an Active Guard Reserve recruiter at the U.S. Army Recruiting Battalion, Milwaukee, Wisconsin.

4.  On 14 March 1988, the applicant was notified by his unit commander that action to separate him for misconduct, under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), was being initiated based on the applicant's involvement in acts of misconduct with a woman on 29 June 1987, his arrest for rape of another woman on 18 December 1982, his alleged rape of another woman on 16 July 1978, his driving under the influence on 7 February 1983, his disorderly conduct on 6 August 1982 and 28 April 1983, and for battery on 25 January 1986 and 25 August 1986.  All actions brought discredit to the applicant and the Army.  The unit commander further informed the applicant he was recommending he receive a discharge under other than honorable conditions (UOTHC).

5.  On 22 March 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation and its effects, the rights available to him, and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant requested consideration of his case by and personal appearance before an administrative separation board.  He also requested representation by counsel.

6.  On 9 and 10 June 1988, an administrative separation board convened at the U.S. Army Recruiting Battalion to consider the applicant's case with the applicant and his counsel present.  After considering the evidence before it, the board found by a majority vote that the preponderance of the evidence established the applicant committed a serious offense.  The board recommended the applicant be separated for misconduct and be furnished a general under honorable conditions discharge (GD).

7.  On 15 July 1988, the separation authority reviewed the proceedings of the administrative separation board pertaining to the applicant and approved its findings and recommendations.  He directed the applicant be discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense and that he receive a GD.  On 10 August 1988, the applicant was discharged accordingly.

8.  The DD Form 214 issued to the applicant upon his discharge on 10 August 1988 shows he held the rank and pay grade of staff sergeant/E-6 and had completed a total of 9 years of active military service.  Item 26 (Separation Code) shows that based on the authority and reason for his separation (Army Regulation 635-200, paragraph 14-12c, misconduct, commission of a serious offense), he was assigned a separation program designator (SPD) code of JKQ and item 27 (Reenlistment Code) shows he was assigned an RE code of 3.

9.  The applicant provides an Army Times article titled, "Promotions Go to 965 Guard, Reserve" containing a list of Active Guard Reserve Soldiers who were selected for promotion to sergeant first class and staff sergeant.  The applicant is included in the list of those identified for promotion to sergeant first class.  He also provides USAR discharge orders, dated 3 November 1988, issued by the U.S. Army Reserve Personnel Center which show he received an honorable discharge (HD).

10.  On 24 June 1998, after careful consideration and review of the applicant's military record and all other available evidence, the Army Discharge Review Board determined the applicant's discharge was proper and equitable and it voted to deny his request for an upgrade of his discharge to honorable and for a change to the narrative reason for his separation.

11.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.

12.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.

13.  Paragraph 14-3 further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, USAR, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes, including RA RE codes.  RE-3 applies to persons who have a waivable disqualification.

15.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code JBK is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of commission of a serious offense.  The Department of the Army SPD/RE Code Cross Reference Table stipulates that RE-3 is the proper code to assign members separated with SPD code JBK.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his discharge should be upgraded to an HD, that the reason for his discharge should be changed to convenience of the government, and that his RE-3 code should be changed to RE-1 because improper information was included in the packet considered at his separation hearing were carefully considered.  However, there is insufficient evidence to support these claims.

2.  The evidence of record confirms the applicant was discharged for misconduct based on his commission of serious offenses after his case had been properly considered by an administrative separation board.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for his receipt of a GD instead of a UOTHC discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting an HD.  There is no evidence of record or independent evidence provided by the applicant that would support a conclusion that his discharge was not proper and equitable.  As a result, there is an insufficient evidentiary basis to support an upgrade of his discharge to honorable or a change to the narrative reason for his discharge from misconduct to convenience of the government as he requests.

4.  Further, the record confirms the applicant was appropriately assigned SPD code JBK and RE-3 based on the authority and reason for his discharge.  Therefore, absent any evidence of error or injustice in the discharge process, there is no basis to support a change to his RE code.

5.  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 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 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)                                         AR20100017560



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ABCMR Record of Proceedings (cont)                                         AR20100017560



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