IN THE CASE OF:	  

		BOARD DATE:	    24 July 2012

		DOCKET NUMBER:  AR20120002661 


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 upgrade of his under other than honorable conditions (UOTHC) discharge and his reenlistment eligibility (RE) code. 

2.  The applicant states the discharge was not justified and the RE code is incorrect and unjustified.  The nature of the UOTHC was misrepresented to him and was for a circumstance beyond his personal control.  He states “change from discharge due to pregnancy to honorable discharge.”

3.  The applicant provides no supporting documentation. 

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, with six years of prior U.S. Army Reserve service, enlisted in the Regular Army on 20 February 1981, completed training, and was awarded the military occupational specialties 11B (Infantryman) with a subsequent award of 63T (Improved Tactical Vehicle Systems Mechanic).

3.  He was absent without leave (AWOL) from 22 August 1983 through 22 September 1983 and 24 through 27 October 1983.

4.  The separation processing documents are not contained in the available records.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under Army Regulation 635-200, chapter 10 for the good of the service with a UOTHC discharge on 12 December 1983.  He had 2 years, 8 months, and 19 days of creditable service with 11 days of excess leave and 33 days of lost time during this period.  He was given a separation program designator (SPD) code of JFS and RE codes of RE-3, 3B, 3C.

6.  The record contains no indication of any award or any personal decoration or letters of appreciation or commendation.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Paragraph 3-7a states an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Paragraph 3-7c states a UOTHC discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	d.  Paragraph 3-7c(7) specifically addresses issuance of a discharge UOTHC issued under the provisions of chapter 10 of this regulation; and

	e.  Chapter 10 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 trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

8.  Army Regulation 635-5-1 (SPD Codes), as then in effect, provided the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It stated that SPD code JFS is the appropriate code to assign to 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.  The SPD/RE Code Cross Reference Table included in the regulation provides that an RE-3 was the proper code to assign to members separated with SPD code JFS.

9.  Army Regulation 601-210 (Regular Army And Army Reserve Enlistment Program), in effect at the time, provided the following;

	a.  RE-3 applies to persons not qualified for continued Army service, but their disqualification may be  waiverable.  Service members who received nonjudicial punishment were disqualified, as were persons with bars to reenlistment, and those discharged under the provisions of chapters 9, 10, 13, and 14 of Army Regulation 635-200;

	b.  RE-3B is applicable to service member who have time lost during their last period of service; and

	c.  RE-3C applies to persons who have completed more than 4 months of service who do not meet the basic eligibility pay grade requirements of chapter 2, Army Regulation 601-280, or who have been denied reenlistment under the Qualitative Retention Process according to chapter 10, Army Regulation 601-280.

10.   Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  He was discharged to avoid trial by court-martial.

2.  The SPD and RE codes utilized were the required entries for a chapter 10 discharge.
3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

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)                                         AR20120002661





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ABCMR Record of Proceedings (cont)                                         AR20120002661



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