IN THE CASE OF:	  

		BOARD DATE:	  9 May 2013

		DOCKET NUMBER:  AR20120018240 


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, in effect, reinstatement in the U.S. Army or an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

	a.  He was tried by a court-martial basically due to the lack of documentation. He could not risk a felony conviction over an alleged incident of adultery while waiting on his divorce decree to be filed and then mailed from the North Carolina District Court to his duty station in Arizona.  His reinstatement would be ideal, but at best, he prays for an upgrade of his discharge.

	b.  He believes he was unjustly punished for the court-martial offense he was accused of.  He asks that his prior service awards, to include the Army Good Conduct Medal (3rd Award), and exemplary service be considered.  He can see why his request for an upgrade was denied.  He was tried under Article 134, Adultery.  There was no documentation indicating the exact reason for his court-martial and the circumstances surrounding the incident.  He was legally separated through the Judge Advocate General's office at Fort Bragg, NC, on 5 March 1995.

	c.  North Carolina law dictated a mandatory 1-year separation, during which time they were allowed to conduct themselves as sole and single.  His divorce decree was filed on 4 April 1996, but he did not receive a copy until after his separation from the service.  In essence, he was single at the time of the accusations.
3.  The applicant provides a copy of his divorce decree.

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 Maryland Army National Guard (MDARNG) on 11 April 1985.  He entered active duty for training (ADT) on 18 November 1985.  He completed training and he was awarded military occupational specialty (MOS) 31C (Radio Operator-Maintainer).  He was honorably released from ADT on 21 May 1986 and returned to his MDARNG unit.

3.  On 20 January 1987, he was honorably discharged from the MDARNG for the purpose of enlisting in the Regular Army (RA).

4.  On 2 April 1987, he enlisted in the RA in pay grade of E-2.  He completed training and he was awarded MOS 97B (Counterintelligence Agent).  He was promoted to pay grade E-6 on 1 December 1993.

5.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Order 108-146, issued by the U.S. Army Intelligence Center, Fort Huachuca, AZ, dated 17 April 1996, that reduced him from staff sergeant (SSG)/E-5 to private (PV1)/E-1 effective 4 April 1996.

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 8 May 1996 that shows he was discharged 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.  His service was characterized as under conditions other than honorable. 

He was credited with completing 9 years, 11 months, and 11 days of total active service with no time lost.  He was assigned a reentry eligibility (RE) code of
"RE-4."

6.  He provides a copy of his divorce decree that shows he was separated from his wife on 5 March 1995 and divorced on 27 June 1996.

7.  On 20 October 2001, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 October 2002, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharge and denied his request for upgrade of his discharge.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  It states:

	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 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  The regulation provided that prior to discharge or release from active duty individuals would be assigned RE codes based on their service records or 

the reason for discharge.  Chapter 3 included a list of Armed Forces reentry codes, including RA RE codes.  RE-4 applied to persons separated from the last period of service with a non-waivable disqualification.  Members separated with an RE-4 code were ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting document were carefully considered; however, there is no evidence of record and he did not provide sufficient evidence that shows he was unjustly discharged.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  He was assigned an RE-4 code that is consistent with the reason for his separation.  He has failed to show through the evidence submitted with his application, or the evidence of record, that his assigned RE Code is in error or unjust.  Therefore, he has established no basis for changing his existing RE code that makes him ineligible for reentering military service.

4.  In view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge or making him eligible to reenter military service.

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)                                         AR20120018240



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120018240



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1