IN THE CASE OF:	  

		BOARD DATE:	    19 July 2012

		DOCKET NUMBER:  AR20110023908 


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:

* discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge
* reason code be changed to Convenience of the Government
* Reenlistment Eligibility Code (RE Code) be changed to RE-1 with a corresponding change to the Separation Program Number/designator

2.  He states:  

* under the circumstances the punishment he got was too harsh and severe compared to today’s standards
* his ability to serve was impaired due to family, personal, and his brother’s psychiatric problems
* he tried to serve, but could not, was unable to, and certain other problems hindered his ability to serve
* he tried to apply for a compassionate reassignment, but it was unfairly denied and he was told to forget it
* counseling requirements were not met

3.  He provided:

* page 8 of his DD Form 214 (Report of Separation from Active Duty)
* a five-page self-authored statement

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 20 September 1956 and enlisted in the Michigan Army National Guard (ARNG) on 20 April 1974, with his mother's consent, at the age of 17 years, 7 months, and 1 day.

3.  His reenlistment contact is not filed in his personnel record.  However, Special Orders Number 97-ARNG issued by the State of Michigan, Department of Military Affairs, dated 27 April 1974, show he was ordered to active duty for training (ADT) for the purpose of attending basic and advanced individual training with a report date of 24 May 1974.  His recommended military occupational specialty (MOS) was 13B (Cannoneer).  

4.  The DD Form 214, dated 13 September 1974, shows he was relieved from ADT by authority and reason of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-17, with an honorable character of service, after serving for 4 months.

5.  Special Orders Number 188-ARNG, issued by the Department of Military Affairs, Lansing, MI, dated 16 July 1975, show he was discharged from the ARNG and involuntarily ordered to AD with a report date of 12 August 1975.

6.  His record contains a DD Form 458 (Charge Sheet) which shows he was charged with one specification of being AWOL from 12 August 1975 to 20 January 1976.

7.  On 4 February 1976, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  He further acknowledged he understood that:
	a.  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.  

	b.  he understood that once his request for discharge was submitted it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	c.  he was advised he could submit statements in his behalf; however, he elected not to do so.

8.  On 11 February 1976, his commander and intermediate commander recommended approval of his request with the issuance of an undesirable discharge.

9.  On 17 February 1976, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.

10.  On 19 February 1976, he was discharged accordingly.  His DD Form 214 is not filed in his record.  The DD Form 214 he provides shows in:

* Item 9a (Type of Separation), the entry "Discharge"
* Item 9c (Authority and Reason), has been redacted
* Item 9e (Character of Service), the entry "Under other than honorable conditions"
* Item 9f (Type of Certificate Issued), the entry "DD Form 258A" (Undesirable Discharge Certificate) 
* Item 10 (RE Code), has been redacted 
* Item 27 (Remarks), the entry "161 days lost under 10 USC 972  from:  
“12 AUG 75 - 19 JAN 76" 

11.  On 17 July 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  He submitted a self-authored statement wherein he gave a synopsis of his and his mother's education; his older brother's descent into mental illness; his neglect of his own military duties; and, his responsibilities to take care of his brother; the stress of caring for his brother at such a young age; and the lack of counseling, mentoring, and support he felt he needed while on active duty.

13.  References:
   
   a.  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.

	b.  Army Regulation 635-200, 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.

	c.  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. 

   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.
      
   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.  The evidence of record shows the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, 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 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.

2.  His record shows he was 17 years of age at the time of his enlistment and he was almost 19 years of age at the time of his AWOL.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  There is no evidence that he requested counseling, support, or mentorship for his chain of command regarding his military service.  The evidence shows he never reported to active duty in August 1975.  Also, there is no evidence that indicates he did not understand the terms of his enlistment as evidenced of his completion of basic and advanced individual training, or that his family matters to include his brother's behavior, which is silent in his record, contributed to his acts of misbehavior or misconduct.  

3.  The evidence of record shows a total of 161 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The available evidence is not sufficient to support changing his discharge to an honorable discharge, change in the authority and reason, RE Code or narrative reason for his discharge or his grade.

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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X_____   ___
               CHAIRPERSON
      




ABCMR Record of Proceedings (cont)                                         AR20110023908





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