BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020421 


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 that his undesirable discharge be upgraded to general, under honorable conditions; that his reenlistment eligibility (RE) code be changed; and that his narrative reason for separation be changed to "Convenience of the Government." 

2.  The applicant states he was informed prior to his discharge that because his discharge was medical in nature, it would be automatically upgraded.  He contends he was not given the opportunity to be medically healed prior to his discharge.

3.  The applicant provides a 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 enlisted in the Regular Army on 10 July 1979 and he was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic) upon completion of initial entry training.  

3.  He accepted nonjudicial punishment on 3 December 1981 for wrongfully having in his possession marijuana.

4.  He departed absent without leave (AWOL) on 13 January 1982 and remained in an AWOL status until 28 January 1982.

5.  On 5 February 1982, court-martial charges were preferred against the applicant for being AWOL during the period 13 - 28 January 1982, failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from his superior commissioned officer, and for disobeying a lawful order from his superior noncommissioned officer.

6.  On 1 March 1982, additional court-martial charges were preferred against him for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from his superior noncommissioned officer, and for being disrespectful in language toward his superior noncommissioned officer.

7.  On 15 March 1982, additional court-martial charges were preferred against him for two specifications of failing to go at the time prescribed to his appointed place of duty.  

8.  On 19 March 1982, he consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged in his request that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge (s) against him or of a lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  He also acknowledged that he could be issued an under other than honorable conditions discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of a under other than honorable conditions discharge.

10.  On 25 March 1982, the separation authority approved his request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and that an RE code of 4 be entered on the DD Form 214.  The separation authority indicated the applicant was considered to have poor potential for rehabilitation.  

11.  On 26 March 1982, he underwent a medical examination in connection with his separation processing and he was found medically qualified for separation.  On 5 April 1982, he was discharged accordingly.

12.  Block 25 (Separation Authority) of his DD Form 214 shows Army Regulation 635-200, chapter 10.  Block 27 (Reenlistment Code) shows he was given an RE code of "4," and block 28 (Narrative Reason for Separation) shows the entry "Administrative discharge conduct triable by court-martial."

13.  There is no evidence in his available military records showing he was suffering from an unfitting medical condition prior to his discharge.

14.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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.

16.  Army Regulation 635-200, paragraph 3-7b states 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.

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation provides 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.  Chapter 3 of this regulation prescribes basic eligibility for prior-service applicants for enlistment.  This chapter includes a list of Armed Forces RE codes.  

   a.  RE-4 applies to persons not qualified for continued Army service.
   
   b.  RE-3 applies to persons not qualified for continued Army service at the time of discharge, but the disqualification is waivable.

	c.  RE-1 applies to persons completing their term of service who are considered qualified to reenter the Army, so long as all other qualifications are met.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

2.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.  Therefore, the narrative reason for separation shown on his DD Form 214 is correct.

3.  His record of indiscipline includes nonjudicial punishment for possession of marijuana, AWOL, and several court-martial charges for offenses that include disobeying lawful orders and disrespect toward his superior noncommissioned officer.  Based on his record of indiscipline, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

4.  The separation authority directed the applicant be given an RE code of "4" based on his poor potential for rehabilitation.  Therefore, the RE code given is presumed to have been administratively correct and as result, there is no basis to change it.

5.  There is no evidence in his available military records, and he provided none, showing he was suffering from an unfitting medical condition prior to his discharge.  Therefore, his contention that he was not given the opportunity to recover from a medical condition prior to discharge is not support by the available evidence.  

6.  He also contends he was informed that his discharge would be automatically upgraded.  However, the Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  There is no evidence of error or injustice related to his separation processing.

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)                                         AR20120020421



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ABCMR Record of Proceedings (cont)                                         AR20120020421



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