IN THE CASE OF:	  

		BOARD DATE:  22 January 2013

		DOCKET NUMBER:  AR20120011787 


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 discharge.

2.  The applicant states:

* He was discharged due to a chapter 10
* He accepted a discharge under duress and false information
* His lawyer told him he would be able to reenter military service

3.  The applicant provides no documentary evidence.

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 enlisted in the Regular Army (RA) on 3 May 1989 for a period of 
4 years.  He completed his training and he was awarded military occupational specialty 31C (single channel radio operator).

3.  Records show that on 13 November 1990, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under other than honorable conditions, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  His request also states "I am making this request of my own free will and have not been subjected to any coercion whatsoever" and "this decision is my own."  He elected not to make a statement in his own behalf.

4.  Although his charge sheet is not available for review, his record contains a memorandum issued by Headquarters, 1st Armored Division, Office of the Staff Judge Advocate, dated 21 November 1990, that states charges were preferred against the applicant for attempted robbery, rape, and adultery.  It further indicates the applicant's chain of command recommended approval with the issuance of an under other than honorable conditions discharge.

5.  On 21 November 1990, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge.

6.  On 20 December 1990, the applicant was discharged accordingly.  He completed 1 year, 7 months, and 18 days of creditable active service.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was assigned a separation code of "KFS" and a reentry (RE) code of "RE-3."

7.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.


8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.  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.  

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, provided 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 stated the SPD code KFS was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of service – in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulated that an RE-3 code would be assigned to members separated under these provisions with an SPD code of KFS.  However, the SPD/RE Code Cross Reference Table, currently in effect, stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.

10.  Army Regulation 635-200 further states 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 RA and the U.S. Army Reserve (USAR).  Table 3-1 included a list of the RA RE codes:

	a.  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.

	b.  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.

	c.  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 applicant contends he accepted the discharge under duress and false information.  However, evidence shows he consulted with counsel on 
13 November 1990 and he voluntarily and without coercion, requested discharge for the good of the service in – lieu of trial by court-martial.

2.  He also contends his lawyer told him he would be able to reenter military service.  He was given an RE code that would have allowed his reentry, albeit with a waiver.

3.  His record of service included serious offenses for which trial by court-martial was recommended.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

4.  His voluntary 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, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

5.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20120011787



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ABCMR Record of Proceedings (cont)                                         AR20120011787



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