IN THE CASE OF:	  

		BOARD DATE:	  28 July 2011

		DOCKET NUMBER:  AR20110000877 


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 that his general discharge be upgraded to an honorable discharge.  He further requests that his reentry (RE) code be changed from 4 to 1.

2.  The applicant states the characterization of his discharge does not reflect his overall military service and civilian contributions.  He contends that one incident should not supersede more than 20 years of outstanding military and civilian work.  He would like a second chance to continue his service to the job and country he loves.  He can no longer continue with the prison ministry because of questionable concerns about his general discharge.
 
3.  The applicant provides copies of:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Academic transcripts from San Antonio College (SAC)
* Certificate of Associate of Applied Science, SAC
* Certificate. Level 3, Surveying Engineer Technology, SAC
* Certificate of Academic Achievement, Part-Time Honor's List, SAC
* Certificate of Achievement, Marketable Skills, SAC
* Certificates of Membership, Phi Theta Kappa, International Honor Society
* Certificate of Acceptance for Enrollment at Baylor University Class of 2015
* Certificate of Ordination, New Life Fellowship Church
* Certificate of Ordination, Holy Ghost Headquarters Pentecostal Ministries
* Certificate of Appreciation, New Creation Christian fellowship
* Two letters from the Texas Department of Criminal Justice concerning his criminal background check and disapproving his volunteer application
* Six Department of the Army Certificates for award of the Army Commendation Medal
* Six Department of the Army Certificates for award of the Army Achievement Medal
* Certificate of Appreciation for meritorious service in Desert Storm
* Four Certificates of Achievement, United States Army, 1989 - 1999
* Letter of Recommendation from his employer
* Letter of Reference from the Director, New Creation Christian Fellowship
* Photos of children taken in and around the Mall, Washington DC

CONSIDERATION OF EVIDENCE:

1.  On 25 January 1989, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 82C (Field Artillery Surveyor).

2.  The applicant attained the rank of staff sergeant, pay grade E-6, on 
1 September 1997.  His awards included six Army Achievement Medals and six Army Commendation Medals.

3.  On 28 June 2001, the applicant was convicted by a special court-martial of the following violations of the Uniform Code of Military Justice (UCMJ):

	a.  Charge I: Article 132 - two specifications of making a false and fraudulent claim against the U.S. Government totaling $3,601.80; and

	b.  Charge II: Article 121 - three specifications of stealing currency from the U.S. Government totaling $9,882.04.

4.  On 28 June 2001, the applicant was sentenced to reduction to pay grade E-3, confinement for 2 months, and a bad conduct discharge.

5.  In a pretrial agreement concerning sentencing, the convening authority agreed to disapprove any confinement by converting any adjudged confinement of 3 months or more into a bad conduct discharge or converting any confinement less than 3 months into an administrative separation in lieu of court-martial in accordance with Army Regulation 635-200 (Personnel Separations), chapter 10 with an other than honorable conditions discharge.

6.  On 16 November 2004, the U.S. Army Court of Criminal Appeals found that there was no meeting of the minds concerning the pretrial agreement with respect to the discharge provision.

7.  On 20 December 2004, the applicant consulted with legal counsel and 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 for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 5 January 2005, the separation authority approved the applicant’s request for discharge in lieu of trial by court-martial under the provisions of Army regulation 635-200, chapter 10 and directed that he be issued an Other Than Honorable Conditions Discharge.  On 18 January 2005, the applicant was discharged accordingly.  He had completed a total of 15 years, 11 months, and 24 days of creditable active duty service.  Accordingly, he was assigned a Separation Program Designator (SPD) Code of KFS and an RE Code of 4.  

10.  Special Court-Martial Order Number 2, Fort Sill, Oklahoma, dated 
19 January 2005, set aside the findings and sentence of the applicant's special court-martial.  The orders further stated that a rehearing was authorized but was not practical.  The charges and specifications were dismissed.  All rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence were to be restored.

11.  On 26 July 2010, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was too harsh based on the length and quality of his service to include combat service and his education and community service.  The ADRB voted to grant relief by changing the applicant's characterization of service to general, under honorable conditions.  The ADRB further determined that the narrative reason and corresponding reentry code were proper and equitable and voted to not change them.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

	b.  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.

13.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 4 applies to persons separated from their last period of service with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

14.  Army Regulation 635-5-1 (SPD Codes) provide 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 for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table establishes the RE Code of 4 as the proper RE code to assign Soldiers separated for this reason.

15.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 5 years for violation of Article 132, frauds against the United States in amounts over $500.00.

16.  The documentary evidence provided by the applicant shows that after his discharge:

	a.  he continued his education and was awarded an Associate of Applied Science Degree and Certificate showing specialized training accomplishments;

	b.  he has been a dedicated, hard worker for 8 years with an engineering firm, recognized for his performance and self drive; and

	c.  he has volunteered  for more than 7 years in the media department of the New Christian Fellowship. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable because it does not reflect his overall military service and civilian contributions.  He contends that one incident should not supersede more than 
20 years of outstanding military and civilian work.  He would like a second chance to continue his service to the job and country he loves.  He can no longer continue with the prison ministry because of concerns about his general discharge.

2.  The evidence of record shows the applicant was charged with and found guilty of two specifications of making a false and fraudulent claim against the U.S. Government totaling $3,601.80 and of three specifications of stealing currency from the U.S. Government totaling $9,882.04.  This clearly was more than a single incident as claimed by the applicant.  Upon an appellate review determining that there was no meeting of the minds concerning his pretrial agreement, the findings and sentence of his court-martial were set aside.

3.  A rehearing was authorized, but was determined to be impractical.  The applicant subsequently submitted a request for discharge in lieu of court-martial.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

6.  The ADRB reviewed the applicant's discharge and made a deliberate determination that the characterization of service was too harsh.  However, it was determined that the narrative reason for separation was appropriate and it was not changed.

7.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged in lieu of court-martial.  Even so, the ADRB voted to grant the applicant a general discharge.

8.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to a further upgrade to an honorable discharge.

9.  The RE Code of 4 establishing his ineligibility for enlistment/reenlistment was correctly entered on his discharge document in accordance with governing regulations.  There is no evidence of error or injustice.

10.  There is no apparent basis for removal of the applicant’s disqualification that established the basis for his RE Code.  While the applicant’s desire to continue in service to his country is commendable there are no provisions authorizing the change of an RE Code for this purpose.

11.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110000877



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ABCMR Record of Proceedings (cont)                                         AR20110000877



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