IN THE CASE OF:	  

		BOARD DATE:	  7 June 2011

		DOCKET NUMBER:  AR20100026771 


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 the characterization of his undesirable discharge to a general discharge 
* change the reason for his discharge to the convenience of the government
* change his reentry eligibility (RE) code
* change his separation program designator (SPD) code

2.  The applicant states he enlisted for Ranger training and permanent duty assignment at Fort Bragg, NC with the 82nd Airborne Division.  He was in a relationship with a woman and they decided to enlist together, get married, and see the world together.  His drill instructors encouraged him to get married and the Army could give them orders to the same permanent duty stations.

	a.  Within one weekend of his marriage, his wife was sent to Germany and he was sent to Fort Polk, LA for advanced individual training (AIT) as an infantryman.

	b.  He was not given Ranger training or assignment to the 82nd Airborne Division as he had requested.  His wife was sent to Fort Belvoir, VA to recover from an abortion and he decided to go absent without leave (AWOL) to be with her.

	c.  He feels the Army did not honor their promises which were made to him at the time of his enlistment.
	d.  He was young and immature at the time of his enlistment and this had a significant bearing on the decision he made to go AWOL.  He remembers feeling the Army did not follow through with their "end of the bargain."

3.  He states that since leaving the Army he has attended a Technical Institute in Georgetown, DE; obtained certification as a welder and general contractor; and he owns his own business.

4.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 28 February 1975
* his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 26 February 1990
* two personal references

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.  He enlisted, at age 17 with parental consent, on 1 August 1974 for a period of 3 years.  He successfully completed basic combat training (BCT).  He did not complete AIT.  

3.  His DA Form 3286-49R (Statement for Enlistment), dated 1 August 1974, states he enlisted for the 82nd Airborne Division, Fort Bragg.  He had to complete BCT, AIT, and Airborne training in order to receive assignment to the 82nd Airborne Division.  No specific AIT was guaranteed.  However, the form states the training he would receive would be in Army Career Group 11 (Infantry), 11 (Armor), or 13 (Field Artillery).


4.  His military records are not clear as to when he arrived at Fort Polk.  On
30 January 1975, court-martial charges were preferred against the applicant for:

* being AWOL from on or about 4 November to on or about 2 December 1974
* being AWOL from on or about 8 January to on or about 27 January 1975
* stealing a 1970 Mercury Cyclone on or about 15 October 1974

5.  On 30 January 1975, the applicant consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate

6.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  On 19 February 1975, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate.

8.  On 28 February 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial, with an undesirable discharge.  He completed 5 months and 11 days of active service that was characterized as under other than honorable conditions.  He had 83 days of time lost.  The authority for his discharge is shown as Army Regulation 635-200, chapter 10.  The reason for his discharge is shown as for the good of the service.  He was assigned the SPD code of KFS.  He was assigned the RE codes of 3B and 4.


9.  The Army Discharge Review Board reviewed and denied his request for an upgrade to his discharge on 21 June 1976 and on 28 February 1990.  The ABCMR denied his request for an upgrade to an honorable discharge on 26 June 2001.

10.  In an undated letter submitted by the applicant, his wife states her husband is of the Christian faith and his loyalty and dedication to friends and family regardless of hardship and adversity is rare.  She states both she and their son are very much dependent on his support, strength, and kindness.

11.  In a letter submitted by the applicant, dated 21 November 2009, his brother-in-law states he has known the applicant for 22 years.  He states he has always been a very active participant within the family, always offering to help and lend a hand when needed.  The applicant and his family have been very conscientious in trying to be good neighbors and good Samaritans as well as showing heart and compassion to individuals although not always with money, but sharing their food and shelter in times of need.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who 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 at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

13.  Army Regulation 635-200 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.

14.  Army Regulation 601-210 (Regular Army Enlistment Program), then in effect, prescribed eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army.

	a.  Table 4-6 (Armed Forces Reenlistment Codes Regular Army Reenlistment Eligibility Codes) stated that RE-3B applied to individuals who had time lost during their last period of service.  These individuals are ineligible for enlistment unless a waiver is granted.

	b.  Table 4-6 stated that RE-4 applied to individuals separated from their last period of service with a nonwaivable disqualification (refer to Army Regulation 601-280).

15.  Army Regulation 601-280 (Army Reenlistment Program), Table 2-4 (Nonwaivable Moral and Administrative Disqualifications), Line C, stated that questionable moral character or having frequent difficulties with law enforcement agencies were nonwaivable.

16.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities for separation (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation showed that the SPD code of KFS, as shown on the applicant’s
DD Form 214, specifies the narrative reason for discharge as “Conduct triable by court-martial" and that the authority for discharge under this SPD code is Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had to complete BCT, AIT, and Airborne training in order to receive assignment to the 82nd Airborne Division.  No specific AIT was guaranteed; however, the enlistment documents indicated that Infantry was one of the career groups he could receive.  Therefore, his assignment to Fort Polk for infantry training was within the scope of his enlistment guarantees.  He did not complete AIT.  He had disciplinary problems and he was eventually discharged by his own request.  He did not provide the Army the opportunity to live up to the guarantees of his contract.  Therefore, any breach of contract would be on his part by failing to meet the requirements of his contract.

2.  The circumstances surrounding his wife's enlistment and assignment were not available.  However, he was still in training and could not receive a permanent assignment until all of his training was completed.  He did not complete his training and he was processed for separation by his own request.  Therefore, there was no opportunity for the Army to assign him and his wife to the same geographical location.

3.  His age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, age is not a mitigating factor in this case.

4.  His 83 days of time lost within his first 6 months of service shows his service to be unsatisfactory.  Therefore, there is no basis to upgrade his discharge to a general discharge.

5.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an undesirable discharge.  His request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service was administratively correct and in conformance with applicable regulations.  As such, the authority for his discharge is correct.  Therefore, there is no basis for changing this authority over 35 years after his discharge.

6.  Army Regulation 635-5-1, in effect at the time, showed that for the separation authority of Army Regulation 635-200, chapter 10, it required the SPD code of KFS and the narrative reason for separation of "Conduct triable by court-martial." Therefore, the SPD shown on his DD Form 214 is correct; however, the narrative reason for separation shown on his DD Form 214 should read "Conduct triable by court-martial" instead of "For the Good of the Service."  Therefore, his 
DD Form 214 could be corrected to show the correct reason.  However, as this would tend to make him worse off, this correction will not be made.

7.  He had 83 days time lost during his enlistment; therefore, the assignment of the RE code 3B was correct.  It appears he also received an RE code of 4 due to his questionable moral character (being charged with car theft and two periods of being absent without leave).  Therefore, the assignment of the RE code 4 was correct and there is no basis for changing his previously designated RE codes.

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)                                         AR20100026771



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ABCMR Record of Proceedings (cont)                                         AR20100026771



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