IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005629 


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 general discharge to an honorable discharge
* Correction of his reentry (RE) codes to a code that corresponds to a hardship discharge
* An upgrade of his separation code

2.  The applicant states his father had two heart attacks at the time.  He tried to get stationed close to his father but he was sent to Germany instead.  He exhausted all his leave to be with his family.  A week before his leave expired doctors told him his father would not live long due to having lung cancer.  He contacted his unit as well as the Red Cross and attempted get some additional leave, but he was told he had to return to Germany.  He stayed at home to help his father.  His father died 4 weeks later and he stayed to make the funeral arrangements.  He then turned himself in to military authorities at Fort Devens, MA, where he was processed under chapter 10.  The Army Discharge Review Board (ADRB) later upgraded his character of service to general; however, he remains ineligible for benefits because of the separation code. 

3.  The applicant provides his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty). 




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 records show he enlisted in the Regular Army on 2 February 1988 and he held military occupational specialty 12C (Bridge Crewman).  He served in Germany from 27 May 1988 to on or about 1 June 1989.  He was assigned to the 93rd Engineer Battalion.

3.  His records also show he was awarded the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  

4.  On 2 June 1989, after having failed to return from ordinary leave, he was reported in an absent without leave (AWOL) status and on 2 July 1989 he was dropped from Army rolls as a deserter.  He returned to military control on 26 July 1989.  

5.  On 3 August 1989, court-martial charges were preferred against the applicant for one specification of being AWOL from 2 June to 26 July 1989.

6.  On 3 August 1989, the applicant 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 (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that if the 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 Department of Veterans Affairs (VA)
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

8.  In his statement, he indicated that he chose to stay home with his family because his father was ill.  After his father passed, he took care of the funeral arrangements then he turned himself in.

9.  On 25 August 1989, consistent with the chain of command's recommendation, the separation authority approved the applicant's request for voluntary discharge and directed reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge.  The applicant was accordingly discharged on 13 September 1989.

10.  The DD Form 214 the applicant was issued at the time shows that he was discharged under other than honorable conditions in accordance with chapter 10 of Army Regulation 635-200.  This form also shows that he completed 1 year, 
5 months, and 18 days of creditable military service and he had lost time from 
2 June to 25 July 1989.  This form also shows in:

* Item 26 (Separation Code) - "KFS"
* Item 27 (Reenlistment Code) – "RE-3/3B/3C"

11.  On 21 April 2000, the ADRB considered his petition for an upgrade of his discharge and determined his misconduct diminished the quality of his service and that his discharge was proper but inequitable.  Accordingly, the ADRB voted to upgrade his character of service to general.  The ADRB also considered this narrative reason for separation and found it proper and voted not to change it.  

12.  He was reissued a new DD Form 214 that listed his characterization of service as under honorable conditions (general); but his narrative reason for separation, RE code, and separation code were not changed.

13.  Army Regulation 635-200 (Personnel 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.

14.  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.

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve.  Interim Change 12 of this regulation (applicable at the time of the applicant's discharge) prescribed basic eligibility for prior service applicants for enlistment.  Table A-2 included a list of the Regular Army RE codes:

* RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* 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 for enlistment unless a waiver is granted
* RE-3B applied to those individuals who had time lost during their last period of service; they were considered ineligible for enlistment unless a waiver was granted
* RE-3C applied to individuals who had completed over 4 months of service but who did not meet the pay grade requirements for reenlistment

16.  Army Regulation 635-5-1 (Separation Program Designator (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. It states the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table, in effect at the time, stipulated that an RE-3 code will be assigned to members separated under these provisions with an SPD code of KFS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Although the ADRB determined his discharge was proper but inequitable,  the ADRB also considered his narrative reason for separation and found it proper.  His RE codes were not changed.  That finding is still true today.  Despite the applicant's family situation at the time, the fact remains that he was AWOL.  He could have elected trial by a court-martial if he believed he was innocent or that he had extenuating circumstances.  

3.  The applicant's record of service shows that he was charged with being AWOL.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

4.  The applicant’s separation and RE codes were assigned based on the fact that he was separated under the provisions of chapter 10, Army Regulation   635-200, in lieu of trial by court-martial, due to being AWOL.  He was assigned a separation code of "KFS" which is the appropriate code associated with a chapter 10. 

5.  The RE-code associated with this type of discharge was RE-3 at the time (it is RE-4 today).  He was also assigned RE-3B due to having lost time and RE-3C due to not meeting grade requirements for reenlistment.  Therefore, the applicant is not entitled to correction of his assigned RE codes.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is not entitled to any of the 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)                                         AR20120005629



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ABCMR Record of Proceedings (cont)                                         AR20120005629



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