IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110005823 


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 Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to a General Discharge (GD).  He also requests that his reentry (RE) code be changed from RE-3 to RE-1.

2.  The applicant states he was discharged over 15 years ago.  He has moved on with his life and would like to move past this incident.  His discharge is adversely affecting his ability to gain employment.  He adds he has no other blemishes on his military record.

3.  He continues that he had a stellar military career.  His discharge was based on his buying a phone card from another Soldier which turned out to be stolen.  The applicant accepted responsibility because he allowed his honor to be compromised.

4.  The applicant concludes that he believes the punishment (UOTHC discharge) was too severe for his offense, and with his discharge's corresponding RE code, is preventing him from reenlisting in the military.

5.  The applicant provides a letter from counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests a personal appearance before the Board.


2.  Counsel states he would like to schedule a hearing.

3.  Counsel provides documents indexed in a list of exhibits.

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’s military records show that he enlisted in the Regular Army on 28 August 1984, was awarded the military occupational specialty of infantryman, and was promoted to pay grade E-5.

3.  On 28 July 1987, the applicant's commander notified him that action had been taken to permanently disqualify him from the Personnel Reliability Program (PRP) due to his diagnosis of being psychologically immature, a diagnosis which was substantiated by his later being given nonjudicial punishment (NJP).

4.  The applicant responded to that notification stating that the action for which he was given NJP, missing formation, was not done intentionally to disrespect the battalion policies.

5.  On 20 August 1991, the applicant submitted a request for discharge for the good of the service.  This was based on court-martial charges having been preferred against him for obtaining services under false pretenses, dereliction of duty, failure to repair, and disobeying an order from a commissioned officer.  In his request he was advised he may be given a UOTHC discharge, and that he may expect to encounter substantial prejudice in civilian life as a result of a UOTHC discharge.  He was further advised that there is no automatic upgrading of discharges and, if he requested a review of his discharge, he realized that would not imply that his discharge would be upgraded.


6.  The appropriate authority approved his request.  Accordingly, on 20 September 1991 he was given a UOTHC discharge for the good of the service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows his Separation Program Designator (SPD) as "KFS" and his RE code as RE-3.

7.  The documents provided by the applicant show his post-service credit worthiness, schooling and course completion, work ethics and accomplishments, and family values.

8.   Army Regulation 635-200 (Enlisted Separations) 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.

9.  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.  

10.  Army Regulation 601-210, table 3-6, lists the various RE codes and describes the reason(s) a Soldier is assigned a particular code.  The code of 
RE-1 is assigned to individuals who complete an initial term of active service and who were fully qualified to reenlist when last separated.  The code of RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.  

11.  The SPD/RE Code Cross Reference Table, directs that SPD "KFS" be assigned RE code RE-3.  

12.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires. 


DISCUSSION AND CONCLUSIONS:

1.  Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.

2.  While the applicant states that his using a stolen phone card was the only blemish on his record, his participation in the PRP was terminated due to psychological immaturity and receiving an NJP for missing formation.

3.  In addition, the applicant was also charged with dereliction of duty, failure to repair, and disobeying an order from a commissioned officer.  

4.  When the applicant requested discharge, he was advised he may be given a UOTHC discharge, and that he may expect to encounter substantial prejudice in civilian life as a result of a UOTHC discharge.  He was further advised that there is no automatic upgrading of discharges and, if he requested a review of his discharge, he realized that would not imply that his discharge would be upgraded.

5.  While the details of the applicant's offenses are not a matter of record, given his length of service it would be reasonable to presume that he would have been offered NJP unless the seriousness of the charges made such a course of action inappropriate.  Therefore, it must be presumed that the applicant's offenses were considered quite serious by his command.

6.  While the applicant's post-service record is commendable, it is insufficient to warrant upgrading a properly-issued discharge.

7.  An RE code is based on the SPD code.  Since there is no basis to change the applicant's discharge, there is no basis to change either his SPD code or his RE code.

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)                                         AR20110005823





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ABCMR Record of Proceedings (cont)                                         AR20110005823



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