IN THE CASE OF:	  

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110015316 


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 an upgrade of his discharge from under other than honorable conditions to a general under honorable conditions discharge.

2.  The applicant states 27 years after his discharge he discovered he could have obtained a waiver to reenlist in the military and redeemed his honor.  The Judge Advocate General (JAG) attorney he was assigned did not inform him about the waiver process, and while the current record is not in error, it is unjust, because he could have obtained a waiver for reenlistment and redeemed his family honor.  He is a quality manager for a company who partners with force protection to build life saving equipment, and may lose his job because he is unable to obtain a security clearance.  He begs the board to consider his case since he would have obtained a waiver if he had known he was eligible.

3.  The applicant provides a self-authored statement and letter.

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.  After having had prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army and entered active duty on 30 June 1981.  He held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained was sergeant/E-5.

3.  He was stationed in Baumholder, Germany, and assigned to B Company, 1st Battalion, 39th Infantry, from 29 September 1981 until 26 October 1984. 

4.  On 22 August 1984, his commander recommended him for trial by a special court-martial.  The charge sheet shows he was charged with one specification of stealing $50.00 from a fellow Soldier.

5.  On 2 October 1984, he 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 Uniform Code of Military Justice, the possible effects of a bad conduct or dishonorable discharge, and the procedure and rights that were available to him.  Subsequent to receiving this legal counsel, he, without coercion, voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu to trial by court-martial.

6.  In this request for discharge he indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 11 October 1984, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions characterization of service and be reduced to the lowest enlisted grade prior to separation.  

8.  On 15 October 1984, he underwent a mental status evaluation.  The results show he admitted to committing the offence for which he was charged.  The medical authority psychiatrically cleared him for any administrative action deemed appropriate by his command.

9.  On 18 October 1984 he signed a document stating that he did not desire a medical examination prior to his separation from military service.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 26 October 1984 in the rank/grade of private/E-1 for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions, with the a reentry code (RE) of RE-3/3C.  This form further confirms he completed 3 years, 3 months, and 27 days of creditable active service. 

11.  On 16 February 1988, the Army Discharge Review Board (ADRB) considered his request to upgrade his discharge to a general under honorable conditions discharge.  The ADRB determined he was properly and equitably discharged, and denied his request to upgrade his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

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

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army and the U.S. Army Reserve.  Table 3-6 (Armed Forces Reenlistment Eligibility Codes) of this regulation, in effect at the time, states, in pertinent part, that RE-3C applies to persons who have completed over 4 months service who do not meet the basic eligibility pay grade requirements of Chapter 2, Army Regulation 601-280 (Army Retention 


Program).  Paragraph 3-10 provides that RE Codes may be changed only if they are determined to be administratively incorrect.  

15.  Army Regulation 601-280 prescribes the criteria for the Army Retention Program.  Paragraph 2-22 of this regulation, in effect at the time, states, personnel in grade E-2 and below, regardless of years of service completed, are not authorized reenlistment.  No waivers considered.

DISCUSSION AND CONCLUSIONS:

1.  The separation authority listed on his DD Form 214 is Army Regulation 
635-200, chapter 10.  This entry is used when a service member voluntary requests discharge in lieu of trial by court-martial.  Evidence shows that having been advised by legal counsel, he voluntarily requested discharge for the good of the service.  Additionally, he freely admits that there is no error in his record.

2.  His basis for requesting an upgrade to his discharge was that he could have obtained a waiver to reenlist in the military if his JAG attorney had informed him about the waiver process, and that because his attorney failed to properly counsel him on his rights and benefits his record is unjust, since he could have obtained a waiver for reenlistment

3.  His DD Form 214 contains an RE-3/3C.  This code made him ineligible for reenlistment without a waiver.  

4.  Based on the foregoing, there is no ground for granting his 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)                                         AR20110015316





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ABCMR Record of Proceedings (cont)                                         AR20110015316



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