IN THE CASE OF:	

		BOARD DATE:	17 May 2011

		DOCKET NUMBER:  AR20100027680 


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 his discharge under other than honorable conditions (UOTHC) be upgraded to general, his reason for discharge be changed to "for the convenience of the government," his reentry eligibility (RE) code be changed to RE-1, and his separation program designator (SPD) code be changed as appropriate.

2.  He states:

* under current standards he would not receive this type of discharge
* his average conduct and efficiency ratings/behaviors and proficiency marks were good
* he has been a good citizen since his discharge
* he tried to serve, but he wasn't able because of alcohol impairment
* his record of being absent without leave (AWOL) indicates only minor or isolated offenses
* his discharge was improper because there were programs available to assist him with his alcohol abuse, but none were offered
* untreated alcoholism was the reason for the AWOL that led to the UOTHC discharge
* he turned to alcohol as a way to cope while grieving the death of a good friend
* although others were aware of his abuse of alcohol, no help was offered and he was not aware of the Army Substance Abuse Program


* he is a hard worker and dependable and alcohol has not been an issue in his life since 1991
* he is raising two teenage daughters

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release Discharge from Active Duty), four character reference letters, and several newspaper and yearbook clippings showing his involvement in extracurricular activities while he was in high school.

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 25 May 1989.  He completed training and was awarded military occupational specialty 11B (Infantryman).  He was subsequently assigned to Fort Bragg, NC.

3.  He was advanced to private first class/E-3 on 1 February 1990.

4.  On 8 July 1991, charges were preferred against him under the Uniform Code of Military Justice for violation of Article 86; he was AWOL from 26 June 1990 to 26 June 1991.

5.  The applicant consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood the elements of the charge(s) against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He also acknowledged he understood he would receive a UOTHC discharge, he would be deprived of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of the discharge.  He indicated he received legal advice, but the request was made voluntarily and reflected his own free will.

6.  On 15 July 1991, the separation authority approved the applicant's request for discharge and directed that he be discharged UOTHC.

7.  On 5 August 1991, the applicant was discharged accordingly.  He completed a total of 1 year, 2 months, and 11 days of creditable active military service.  His DD Form 214 shows "KFS" in item 26 (Separation Code), item 27 (Reentry Code) shows "3," and item 28 (Narrative Reason for Separation) shows "for the good of the service - in lieu of court-martial."

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

9.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE code 3 applies to a person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.

10.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of KFS was the appropriate code based on the guidance provided in this regulation for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may 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 UOTHC is normally considered appropriate.

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.
DISCUSSION AND CONCLUSIONS:

1.  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.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.  The RE code, SPD code, and reason for separation annotated on his DD Form 214 are appropriate.

2.  The applicant submitted neither probative evidence nor a convincing argument in support of his request.

3.  There is no evidence of record to substantiate the applicant's implication that military authorities were aware of the type or extent of his personal problems.

4. The applicant's claim of good post-service conduct is noted.  However, it does not sufficiently mitigate the misconduct that led to his discharge.  In any case, he could have referred himself for alcohol-abuse treatment.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20100027680



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