BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110000617 


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, in effect, that this Board affirm the Army Discharge Review Board's (ADRB) decision to upgrade his under other than honorable conditions discharge to a general discharge.  He also requests that his reentry (RE) code be changed to show reentry eligibility.

2.  The applicant states his discharge from the Army National Guard (ARNG) was improper because he was just following orders and he was not absent without leave (AWOL).  His discharge has been upgraded by the ADRB; however, without a subsequent correction by the Army Board for Correction of Military Records (ABCMR), the Department of Veterans Affairs (VA) will not provide him any benefits because of his lengthy AWOL.

3.  The applicant provides:

* A letter from the Review Boards Agency, Support Division, St. Louis, MO, dated 9 July 2010
* A letter and case report from the ADRB, dated 19 February 2010
* A 4-page affidavit, dated 21 December 2010
* His DD Form 214 (Certificate of Release or Discharge from Active Duty), member copies 1 and 4
* A voided copy of his DD Form 214, service copy 2
* A letter from the VA, Huntington, WV, dated 28 September 2010, with a Supplemental Statement of the Case


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests this Board consider the applicant's request and correct his military records so that he can continue his evaluation for VA benefits.

2.  Counsel states the applicant is currently applying for VA benefits.  The ADRB has already determined that his "under other than honorable conditions" discharge was too harsh.  However, the VA requires corrective action by the ABCMR before granting VA benefits.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  Summary of the applicant's military service:

* 28 January 1994:  Enlisted for 8 years in the ARNG with the option of training as a motor transport operator and advancement to the rank/grade of specialist (SPC)/E-4 upon completion of basic training
* ARNG unit of assignment was the 1484th Transportation Company
* 2 March to 5 May 1994:  Enrolled in and completed basic combat training
* 9 December 1995:  Reduced to private first class (PFC)/E-3, due to inefficiency
* 1 April 1996:  Separated from the ARNG due to unsatisfactory participation and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) [no active status or active duty service]
* 5 August 2002:  Voluntarily transferred to the 660th Transportation Corps Company, Detachment 1, located in Zanesville, OH
* applicant assigned to the 629th Transportation Company with a reporting date of 17 February 2003 to Fort Drum, NY for mobilization in support of Operation Enduring Freedom [exact location and date of movement unavailable]
* 26 May 2003:  The 47th Combat Support Hospital diagnosed the applicant with new onset of angina, obesity, and transient ischemic attack
* 1 June 2003:  the Fleet Hospital Eight medically evacuated the applicant to Eisenhower Army Medical Center, Fort Gordon, GA
* On a date unavailable:  Assigned him to Headquarters and Headquarters Company (HHC), Installation Troop Command (ITC),10th Soldier Support Battalion (10th SSB), located at Fort Drum
* AWOL:  from 23 August 2003 - 17 February 2004 (179 days)
* 18 February 2004:  Returned to military control at HHC, ITC, 10th SSB, Fort Drum


* AWOL:  from 8 March - 30 July 2004 (145 days)
* 31 July 2004:  returned to military control at Fort Knox, KY

2.  On 9 August 2004, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the periods 23 August 2003 - 17 February 2004 and 8 March - 30 July 2004, for a total of 324 days.

3.  On 19 August 2004, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, 

4.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, and that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.  

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, 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 did not submit a statement on his own behalf.

6.  On 24 August 2004, the separation authority approved the applicant’s request for discharge with an under other than honorable conditions discharge.  On
3 September 2004, the applicant was discharged accordingly.  Item 24 (Character of Service shows the entry "under other than honorable conditions," item 26 (Separation Code) show the entry "KFS," and item 27 (Reentry (RE) 


Code) shows the entry "4."  He completed a 7 months and 29 days of creditable active service.  Item 29 (Dates of Time Lost During this Period) shows he had time lost from 23 August 2003 - 17 February 2004 and 8 March 2004 – 30 July 2004, which equates to 324 days.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* National Defense Service Medal
* Army Service Ribbon
* Expert Marksmanship Qualification Badge with Grenade Bar
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)

8.  On 25 January 2010, the ADRB, under the provisions of Title 10, U.S. Code, section 1553, reviewed the applicant's military records in response to his request for an upgrade of his characterization of service.  The case report and directive indicated that the applicant had served in the ARNG from 28 January 1994 to 
1 April 1996 and he received a general discharge.  It also indicated that he had served in the USAR from 2 April 1996 to 5 March 2002 and he had received an honorable discharge.  The analyst for the ADRB found no evidence of arbitrary or capricious actions by the command and determined the reason for discharge and the subsequent characterization were both proper and equitable.  The analyst recommended denial of the request.  However, the ADRB determined that the characterization was too harsh based on the length and quality of his service which included combat service.  Accordingly, by majority vote, the ADRB changed his characterization of service to general, under honorable conditions.  However, the ADRB determined that the reason for his discharge and RE code were proper and equitable and voted not to change them.

9. 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 trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.

10.  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) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the USAR.  RE codes may only be changed if they are determined to be administratively incorrect.  Table 3-1 included a list of the 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-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

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, 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.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

13.  On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for an under other than honorable conditions discharge, to that list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the VA.  The law further required that uniform discharge review standards be published that were applicable to all persons administratively discharged or released from active duty under other than honorable conditions.  It further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly-established uniform discharge review standards.  On 29 March 1978, these newly established uniform discharge review standards were published in DOD Directive 1332-28.

14.  Code of Federal Regulations 38 (CFR 38), section 3.12 (Character of Discharge) provides the VA guidance and law governing pensions, bonuses, and veterans' relief.  It specifically states:

	a.  section 3.12(c)(6):  Benefits are not payable where the former service member was discharged or released under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days;

	b.  section 3.12(c)(6)(i):  Length and character of service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

	c.  section 3.12(e):  An honorable discharge or discharge under honorable conditions issued through a board for correction of records established under the authority of Title 10, U.S. Code, section 1552 is final and conclusive on the VA.  The action of the corrections board sets aside any prior bar to benefits imposed under paragraph 3.12(c) of this section; and

	d.  section 3.12(g):  An honorable or general discharge issued on or after 
8 October 1977, by a discharge review board established under Title 10, U.S. Code, section 1553, does not set aside a bar to benefits imposed under paragraph 3.12(c) of this section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, through his counsel, contends in effect, that this Board should affirm the ADRB decision to upgrade his under other than honorable conditions discharge to a general discharge.  He also requests that his RE code be changed to show his reentry eligibility.  He bases his request on the contention that his discharge from the ARNG was improper because he was not AWOL; that he was just following orders.  Counsel argues that action by this Board is required before the VA will grant the applicant veteran benefits.

2.  The evidence of record confirms the applicant was charged with the commission of an offense (two periods of AWOL of over 30 days each) 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.  The rights of the applicant were fully protected throughout the separation process.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
4.  The RE-4 code establishing his enlistment/reenlistment ineligibility was correctly entered on his separation document in accordance with the governing regulations.

5.  There is no apparent basis for the removal or waiver of the applicant’s disqualification that established the basis for the RE-4 code.

6.  The applicant has not provided any documentary evidence showing that he was "just following orders" during any part of his two extended periods of AWOL.  He had an opportunity to raise this issue when he requested discharge; however, he failed to submit a statement on his own behalf.

7.  The ADRB, operating under the provisions of Title 10, U.S. Code, section 1553, reviewed the applicant's characterization of service.  It determined that the characterization was too harsh based on the length and quality of his service which included combat service.  Accordingly, the ADRB changed his characterization to general, under honorable conditions.

8.  A review of the applicant's overall service shows:

	a.  he was reduced in rank/pay grade a year after entering the ARNG due to inefficiency;

	b.  after 2 years in the ARNG, he was separated due to unsatisfactory participation; 

	c.  he was a member of the IRR for 6 years and 4 months, during which there is no evidence of any activity on his part;

	d.  in August 2002, he volunteered for assignment to the 660th Transportation Corps Company.  Less than a year later, he was reassigned to the 629th Transportation Corps for mobilization in support of Operation Enduring Freedom; 

	e.  in February 2003 he was ordered to the combat zone, and he returned to the United States on or about 1 June 2003 due to a non-combat illness;

	f.  he was AWOL from 23 August 2003 to 17 February 2004 and from 
8 March to 30 July 2004; and

	g.  there is no evidence he was ever awarded any personal decorations or was ever commended for his duty performance.


9.  Based on this Board's review, as provided for under the provisions of
Title 10, U.S. Code, section 1552, taking into consideration the specifics of the applicant's service as shown above, it would be inappropriate to affirm the determination made by the ADRB.  The length and character of service should generally be of such quality and length as to be characterized as honest, faithful, and meritorious, and of benefit to the nation.  In this case, the applicant's overall service does not warrant such.

10.  In view of the above, the applicant's request should be denied.

11.  In that the applicant's desire is to obtain VA benefits which he says are being denied due to his lengthy AWOL, he may request the VA review its decision because neither of his periods of AWOL have exceeded the 180 day provision of CFR 38, section 3.12(c)(6).  However, the Army has no jurisdiction over VA policies and procedures, and the VA may have additional guidance that is not known by this Board.

BOARD VOTE:

___x_____  ___x_____  ___x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20110000617



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ABCMR Record of Proceedings (cont)                                         AR20110000617



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