IN THE CASE OF:	  

		BOARD DATE:	    28 July 2011

		DOCKET NUMBER:  AR20110001250 


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 be upgraded to honorable
* the reason for his discharge be changed to "convenience of the government"
* his reentry eligibility (RE) code be changed to RE-1 with a coordinating separation program number/designator code (SPD)

2.  He states:

* he wants his discharge upgraded in order to be eligible for medical benefits
* he feels the discharge was unjust due to the nature of the offense and his prior record as a Soldier
* there were no issues or discipline with drugs or alcohol during his entire period of service
* there was no attempt to offer help or counseling
* there was pressure from the military police investigator to sign a confession and not serve prison time
* his entire military career was lost because of one mistake and was unjust on the best of the Army and its officers 


3.  He provides:

* two DD Form 214 (Certificate of Release or Discharge from Active Duty)
* three memorandums from the Department of Veterans Affairs (VA)
* self authored statement
* three personnel references
* three certificates of course completion
* seven pages of his medical records

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 was born on 16 November 1966.  After having had prior service in the U.S. Army Reserve he enlisted in the Regular Army on 1 August 1985 at the age of 18 years.

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  He submitted the following medical documents:

   a.  Optional Form 275 (Medical Record Report), dated 16 December 1987, shows he was admitted to the Oral Surgery Service Ward on 15 October 1987 after losing consciousness following a blow to the mandible (lower jaw) and fracturing his right mandibular condyle (the round bump on the jaw bone that articulates the scull).  He was discharged on 16 November 1987.
   
   b.  Radiological Consultation Report, dated 19 January 1988, shows he underwent a cat scan of his head.

   c.  Standard Form 93 (Report of Medical History), dated 20 August 1991, shows he completed a chapter physical that indicated he had headaches due to head injury, loss of hearing in right ear, pain in knee, back, and under feet.
   
   d.  DA Form 88 (Report of Medical Examination), dated 20 August 1991, shows he had a surgical scar to this right cheek and that his mandible was well healed.

5.  On 1 August 1991, charges were preferred against him for:

* wrongful possess of cocaine on or between 25 May and 10 June 1991
* wrongful use of cocaine on or between 25 May and 10 June 1991

6.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, on 6 August 1991, he voluntarily requested a 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 that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and he was fully advised of the nature of his rights under the UCMJ at the various possible stages of the proceedings including those of appeal involved in a trial by court-martial.

7.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement in his own behalf.

8.  On 15 August 1991, the separation authority approved the applicant's discharge action under provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed the applicant be issued a under other than honorable conditions discharge and reduced to the private (E-1).

9.  On 18 September 1991, he was discharged accordingly.  The DD Form 214 he was issued shows in:
* Item 24 (Character of Service) the entry "under other than honorable conditions"
* Item 25 (Separation Authority) the entry "Chapter 10, Army Regulation 635-200" 
* Item 26 (SPD) code "KFS" 
* Item 27 (RE code) "3"
* Item 28 (Narrative Reason for Separation) "For the Good of the Service - in lieu of court-martial"

10.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  He submitted: 

   a.  Three character reference letters that noted he continued to take college class, showed technical knowledge that is unsurpassed, is living a clean life, is a good citizen, a good son, and a determined, straight-forward individual; 

   b.  three certificates which show he:

		(1)  completed skill training in a Medical Assistance program

		(2)  was on the Dean's List at DeVry University 

		(3)  successfully completed 120 days of substance abuse treatment; and 

   c.  three memorandums from the Chicago VA Regional Office, Chicago, IL, dated 20 March 2007, 18 January 2008, and undated which show that his record concerning his discharge was reviewed and it was determined that based on his under other than honorable conditions discharge he was not entitled to any VA benefits.

12.  References:

	a.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

	b.  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.  

   c.  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 VA 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.

   d.  Army Regulation 635-5-1 (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.  The SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.
      
   e.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be cross-referenced with Army Regulation 635-5-1 (SPD Codes).
      
   f.  Pertinent Army regulations provide 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, 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.

		(1)  RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

		(2)  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 unless a waiver is granted.

		(3)  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.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  His contention that his discharge should be upgraded so that he may be eligible for medical benefits was found to lack merit.

3.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood 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 laws.  There is no indication that his request was made under coercion or duress.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

5.  His record shows he was 18 years of age at the time of his enlistment and he was 25 years of age at the time of his offenses.  However, there is no evidence that indicates his age contributed to his acts of misbehavior or misconduct.  In fact, his record shows he violated the Army's established drug abuse policy by possessing and using illegal drugs which compromised the trust and confidence placed in him as a noncommissioned officer.  He had a duty to support and abide by the Army's drug policies.  By abusing illegal drugs, he risked his military career.  

6.  The certificates provided by the applicant documenting his good post-service conduct are noteworthy.  However, good post-service accomplishments alone are not sufficiently mitigating to support an upgrade of his discharge.

7.  The character references provided by the applicant documenting his good post-service conduct are noteworthy.  However, they alone are not sufficiently mitigating to support a change in the characterization, RE code or narrative reason for his discharge or his grade.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110001250



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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