IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100028786 


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 under other than honorable conditions discharge to an honorable discharge, change of his discharge "from" the "convenience of the Government," and change of his reenlistment (RE) code to RE-1.

2.  The applicant provided a self-authored letter stating the following reasons for his request for an upgrade:

* the Army did not help him with his mental condition
* the Army did not provide enough psychological sessions and he was never asked if he was OK
* he went absent without leave (AWOL) to get his mind off the voices and to find a place to "bump" [rocking action to relieve stress] from fear of being caught by others
* he never received an Article 15
* he maxed his PT [physical training] test and was a squad leader 
* he finished advanced infantry school and airborne training
* he completed the radio telephone operator school, projectionist school, and generator school
* he currently lives in a Department of Veterans Affairs (VA) facility supported by Volunteers of America
* he is an outstanding resident and he volunteers daily when needed
* he is currently seeking employment and an honorable discharge
* 
he is also attending school to finish his degree in social work
* he is involved in the church and is born again from self-hate
* he is sorry for not finishing his duty
* an honorable discharge would give him the chance to use most veterans services that are available

3.  The applicant provides:

* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* five letters of support
* a self-authored letter
* a Certificate of Completion for the 50-hour Clinical Services Department Substance Abuse Treatment Program
* his Associate in Arts - Liberal Arts diploma from East Los Angeles College
* a third-party question on the internet concerning obsessive compulsive disorder (OCD)

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 (RA) on 4 February 1986.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman). The highest rank/grade he attained was private first class (PFC)/E-3.

3.  On 11 June 1987, court-martial charges were preferred against the applicant for being AWOL from on or about 8 April 1987 to on or about 9 June 1987.

4.  On 12 June 1987, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the effects of a 

discharge under conditions other than honorable, and of the rights available to him.  As a result, the applicant 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 was making the request of his own free will and that he was not coerced into making the request.  He also acknowledged that if his discharge request was approved he may be discharge under conditions other than honorable and issued an Under Other Than Honorable Conditions Discharge Certificate, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.

5.  On 26 June 1987, the separation authority approved the applicant’s request for discharge and directed his reduction to private (PV1)/E-1 and issuance of an Under Other Than Honorable Conditions Discharge Certificate.

6.  On 6 August 1987, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The DD Form 214 he was issued shows he completed 1 year,
4 months, and 2 days of creditable active service.  It also shows in:

* item 26 (Separation Code) the entry "KFS"
* item 27 (RE Code) the entry "3, 3B, and 3C"
* item 28 (Narrative Reason for Separation) the entry "for the good of the service - in lieu of court-martial
* item 29 (Dates of Time Lost During This Period) the entry 870408 - 870608

7.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

9.  Army Regulation 635-200, paragraph 3-7b, states 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.

10.  Army Regulation 635-5-1 (Separation Program Designator (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 the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service - in lieu of court-martial.  The SPD/RE Code Cross Reference Table, in effect at the time, stipulates that an RE-3 code will be assigned to members separated under these provisions with an SPD code of KFS.  Currently, Soldiers with an SPD of KFS are assigned an RE-4 code.

11.  Army Regulation 635-200 further states 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 (Active and Reserve Components Enlistment Program), in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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 for enlistment unless a waiver is granted.

	c.  RE-3B applies to Soldiers who have lost time during their last period of service.  They are ineligible for enlistment unless a waiver is granted.

	d.  RE-3C applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements or who have been denied reenlistment under the qualitative retention process.  They are ineligible for enlistment unless a waiver is granted.

	e.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his under other than honorable conditions discharge should be upgraded to an honorable discharge because he believes he did not receive proper medical attention from Army for his psychological and substance abuse issues were carefully considered and found to be without merit. There is no evidence in his military record and he did not submit any evidence that shows he was suffering from any psychological or substance abuse issues even after his return from AWOL status.

2.  The type of discharge directed was appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

3.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  Therefore, he is not entitled to a general or an honorable discharge.

4.  The RE-3 code assigned to the applicant was the proper code to assign members separating under the provisions of Army Regulation 635-200,
chapter 10.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, there is no evidence nor has the applicant presented any evidence to warrant relief.  As a result, the RE-3, 3B, and 3C codes were appropriate at the time of his discharge.

5.  The applicant's separation authority and separation code on his DD Form 214 shows he was assigned a corresponding narrative reason for separation of for 

the good of the service - in lieu of court-martial.  Based on the governing regulation, that was the only narrative reason for separation as a result of his voluntary request for discharge under Army Regulation 635-200, chapter 10.  Therefore, there is no basis for changing 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)                                         AR20100028786



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ABCMR Record of Proceedings (cont)                                         AR20100028786



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