BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120014259 


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 under other than honorable conditions (UOTHC) to general under honorable conditions.

2.  The applicant states he believes his discharge was too harsh in light of his post-service conduct.  He is currently receiving treatment and counseling for depression and suicide attempts.  The Department of Veterans Affairs (VA) is currently providing him care, but it may be discontinued soon if his discharge is not upgraded.  His doctors and he feel that discontinuing treatment would severely impede his progress, drive him farther apart from his family, and make it extremely difficult to have any normalcy in his life.  He contends that he is in dire need of the benefits provided by the VA to prevent his relapse into a situation from which he could not recover.

3.  The applicant provides four letters of support.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests, in effect, that applicant's military records be corrected by upgrading his characterization to general under honorable conditions and changing the narrative reason and reentry eligibility (RE) code in accordance with such upgrade.

2.  Counsel states the applicant was awarded two Army Commendation Medals, three Army Achievement Medals, an Army Good Conduct Medal, an Overseas Service Ribbon, a Noncommissioned Officer Professional Development Ribbon, an Army Service Ribbon, and various badges while serving on active duty.  He also attained the rank of sergeant and completed three military service schools.  Counsel opines that the applicant has made great strides in his post-service life.  He came from a tough background but had tried his best while in the service and is now is getting his life back together.

3.  Counsel provides no additional 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.  On 13 November 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 55B (Ammunition Specialist).

3.  The applicant advanced through the ranks and was promoted to sergeant/pay grade E-5 on 8 October 1988.  He was subsequently assigned for duty with the 545th Ordnance Company in Germany.

4.  On 28 March 1991, the applicant accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty on five separate occasions between 11 May 1990 and 15 March 1991.

5.  On 1 May 1991, the unit commander advised the applicant of his intent to disqualify him from the Personnel Reliability Program (PRP) because he no longer felt he was qualified to perform his duties.  The commander cited the applicant's adverse behavioral characteristic as a basis for this action and informed the applicant that he could submit a statement in his own behalf.

6.  On 1 May 1991, the applicant indicated his desire to make a statement refuting his disqualification, but later withdrew his election to submit such statement.

7.  The commander recommended the applicant's disqualification from the PRP and stated that charges had been preferred for court-martial.  The commander cited the following as justification for such charges:

	a.  the applicant, a married man, had sexual intercourse with a female Soldier, not his wife, between August 1990 and January 1991;

	b.  the applicant wrongfully committed indecent acts with the same female Soldier during October and November 1990 in the barracks with the knowledge that a third person was in the room; and

	c.  the applicant was drunk and disorderly on 10 November 1990 at the Muenster Depot, bringing discredit upon the U.S. Armed Forces.

8.  On 9 June 1991, the appropriate authority approved the recommendation to disqualify the applicant from the PRP.

9.  The complete discharge packet is missing from his military records.  However, a second endorsement, dated 28 June 1991, subject:  Request for Discharge for the Good of the Service, indicates that the applicant had initiated a request for such discharge on 25 June 1991.  This endorsement shows the commanding general approved that request and directed the applicant's separation from the service UOTHC.

10.  On 18 July 1991, the applicant was discharged accordingly.  He completed a total of 6 years, 8 months, and 6 days of creditable active duty service.  He was assigned a separation program designator (SPD) code of KFS and an RE code of 3.  His character of service was UOTHC.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The four letters of support provided by the applicant, offer the following:

	a.  A friend of more than 30 years states the applicant is a person whom he both respects and admires.  The applicant has been active in the community as a role model for so many of the youth.  He has sponsored Little League baseball teams and donated clothing to the needy.  When the applicant's mother passed away in the 1980's, he became the primary care giver for his five siblings.  At the time, he was not more than 20 or 21 years of age.  The applicant adopted all five siblings and was able to encourage and inspire each of them to obtain an education and go on to be successful citizens.  He did all of this while pursuing his career in the military and being a newlywed with a newborn child.

	b.  A retired master sergeant/pay grade E-8 states the applicant's character is immeasurable.  He has always gone to great lengths to take care of his responsibilities.  His service was selfless.  The author identifies the applicant as a strong-willed, determined, misunderstood, and impressionable man, who has given up so much for so little in return.  While he made some decisions that resulted in dire consequences and a lapse in judgment curtailed his meteoric rise, he has continued to strive to be a better person and to learn from his perilous decisions that derailed his life.

	c.  A social worker states the applicant has received outpatient therapy for depression and post-traumatic stress disorder since October 2010.  He has presented himself in a cordial and appropriate manner and has been cooperative and productive in psychotherapy and other mental health services.  He has been active in working on assignments related to "CBT" and has demonstrated efforts to implement recommended changes in his daily life.

	d.  A pastor who has known the applicant since he was a small child writes to ask that his discharge be upgraded so he is able to continue receiving treatment from the VA.  He states the applicant is a person who has always put the needs of others before his own.  He has been a hard-working person who has had very difficult and trying times.  The applicant is very deserving.

13.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	b.  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.  

14.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.  RE code 3 applies to persons separated from their last period of service with a waivable disqualification.  

15.  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 was the appropriate code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper RE code to assign to Soldiers for this reason at the time of his discharge.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) paragraph 2-9 provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his discharge UOTHC to general under honorable conditions because he believes it was too harsh in light of his post-service conduct.

2.  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.

3.  The SPD code of KFS was the appropriate code for the applicant based upon the reason for his discharge.

4.  The RE code 3, establishing his enlistment/reenlistment ineligibility without a waiver, was correctly entered on his separation document in accordance with governing regulations in effect at the time.

5.  The applicant's record of good service is greatly diminished by his repeated acts of misconduct.  The applicant’s claim of good post-service conduct is noted. However, it does not sufficiently mitigate his indiscipline during his military service.

6.  The applicant's desire to obtain VA medical benefits is not a justifiable basis to upgrade his discharge.

7.  In view of the above, the applicant's request should be denied.
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
      
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)                                         AR20120014259



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ABCMR Record of Proceedings (cont)                                         AR20120014259



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