IN THE CASE OF:	  

		BOARD DATE:	    2 July 2013

		DOCKET NUMBER:  AR20120021192 


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 correction of his records to show his correct date of birth (DOB), date entered active duty, and reentry eligibility (RE) code.  He also requests an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states his DOB is 24 November 1957 and he entered active duty on 10 December 1978.

   a.  While serving on active duty, his mother became extremely ill and he was allowed to go home; however, he failed to return to his unit.  At the time, his priority was to take care of his mother.

   b.  When he returned to his unit, he explained that he wanted to remain in the Army.  He was informed that he wouldn't be able to stay in the Army, but he could reenter the Army at a later date.

   c.  He was discharged under other than honorable conditions and issued 
RE Code "3B."

3.  The applicant provides no additional documentary evidence in support of his application.


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.  A DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the United States) shows the applicant enlisted in the Army National Guard of the United States (ARNGUS) and Missouri Army National Guard (MOARNG) on 
12 September 1978 for a period of 6 years.  It shows in item 7 (DOB) 
"24 November 1957."

3.  Headquarters, Missouri National Guard, Office of the Adjutant General, Jefferson City, MO, Orders 229-1, dated 27 November 1978, ordered the applicant to active duty for training (ADT) for a period of not less than 12 weeks with a reporting date of 10 December 1978.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

   a.  item 9 (Awards, Decorations and Campaigns):  Expert Marksmanship Qualification Badge with Rifle Bar (M-16), 5 February 1979; and

   b.  item 35 (Record of Assignments):
   
* Company A, 1138th Engineer Battalion (Combat), Jefferson Barracks, MO, from 12 September through 9 December 1978
* Company D, U.S. Army Reception Station, Fort Jackson, SC, from 
10 through 15 December 1978
* Company A, 4th Battalion, 1st Brigade, Fort Jackson, SC, from
16 December 1978 through 13 February 1979
* Company A, 15th Battalion, 4th Combat Support Training Brigade,
Fort Jackson, SC, effective 5 March 1979



5.  Headquarters, Fifth U.S. Army, Fort Sam Houston, TX, Orders 58-104, dated 23 March 1979, relieved the applicant from attachment and assigned him to Company A, 15th Battalion, 4th Combat Support Training Brigade, Fort Jackson, SC, effective 5 March 1979.

6.  Three DA Forms 4187 (Personnel Actions) show the applicant's duty status was changed, as follows:

* present for duty to absent without leave (AWOL) effective 5 March 1979
* AWOL to dropped from the rolls (DFR) effective 3 April 1979
* DFR to attached, return to military control (RMC) effective 19 June 1980

7.  Court-martial charges were preferred against the applicant for being AWOL from 5 March 1979 to 19 June 1980.

8.  On 3 July 1980, the applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf; however, he elected not to do so.

	c.  The applicant and his counsel placed their signatures on the document.

9.  The applicant's immediate commander recommended approval of the applicant's request for discharge noting that the applicant's records were not available.  He recommended issuance of an under other than honorable conditions discharge.

10.  On 21 July 1980, the separation authority (a brigadier general) approved the applicant's request for discharge, directed his reduction to private (E-1), and issuance of an Other Than Honorable Conditions Discharge Certificate. 

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 19 August 1980 under the provisions of Army Regulation 635-200, chapter 10, by reason of an administrative discharge - conduct triable by court-martial.  It also shows in:

   a.  item 2 (Department, Component and Branch):  "ARMY/RA" (Regular Army);

   b.  item 5 (DOB):  "571214" (14 December 1957);

   c.  item 12 (Record of Service):
   
* block a (Date Entered Active Duty This Period):  "79  03  05"  
(5 March 1979)
* block b (Separation Date This Period):  "80  08  19" (19 August 1980)
* block c (Net Active Service This Period):  "00  01  23"
* block d (Total Prior Active Service):  "00  00  00"
* block e (Total Prior Inactive Service)  "00  05  23"

   d.  item 18 (Remarks):  48 days excess leave from 3 July 1980 through 
19 August 1980;

   e.  item 26 (Separation Code):  "JFS;"

   f.  item 27 (Reenlistment Code), as corrected by a DD Form 215 (Correction to DD Form 214), dated 20 April 1983:  "RE-3 / RE-3B;" and

   g.  item 29 (Dates of Time Lost During This Period):  5 March 1979 through
18 June 1980 (i.e., 472 days).

12.  On 8 September 1993, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge to an honorable discharge.

13.  On 25 November 1996, the applicant was notified the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character of his service was denied.

14.  Army Regulation 635-200, in effect at the time, 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.  Chapter 3, 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.  Chapter 3, 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.

15.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  Chapter 2 contains guidance on the preparation of the 
DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.  It shows for:

   a.  item 2, enter in capital letters (e.g., for an enlisted Soldier, enter "ARMY/ (RA or ARNGUS or USAR); and

	b.  item 12, use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc. are based upon the information contained herein.  It shows for:

* block a:  enter the beginning date of the enlistment period or tour of active duty for which a DD Form 214 was not issued
* block b:  enter the separation date this period
* block c:  enter the amount of service this period (subtract 12a from 12b); time lost under Title 10, U.S. Code, section 972, and non-creditable time after expiration term of service, if any, will be deducted
* block d:  enter the total amount of prior active military service less time lost, if any
* block e:  enter the total amount of prior inactive service
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.

   a.  It shows that SPD Code "JFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10 based on administrative discharge due to conduct triable by court-martial.

   b.  The SPD/RE Code Cross Reference Table stipulates that RE Code "3" will be assigned to members separated with an SPD code of "JFS."  It also shows that RE Code "3B" will be assigned to members with time lost through AWOL or confinement.

17.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 includes a list of the 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 and RE-3B apply 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his DOB as 24 November 1957, Date Entered Active Duty as 10 December 1978, that he was issued an RE code other than "RE-3" and "RE-3B", and an upgrade of his discharge.

2.  The evidence of record shows the applicant's DOB is 24 November 1957 and that his DOB is correctly recorded in his military service records, including on his DD Form 4.  Thus, it appears the applicant's DOB was incorrectly recorded on his DD Form 214 due to an administrative error.  Therefore, it would be appropriate to correct his DD Form 214 to show his correct DOB.

3.  Records show the applicant was ordered to ADT with a reporting date of
10 December 1978 and that he reported for ADT on that date.  Thus, it appears the applicant's date of entry on active duty was incorrectly recorded in item 12a of his DD Form 214.  Therefore, it would be appropriate to correct his DD Form 214 to show his correct date of entry on active duty.  As a result of this correction, items 12c and 12e should also be corrected to show his correct net active service this period and total prior inactive service.

4.  Records show the applicant:

* enlisted in the ARNGUS and MOARNG on 12 September 1978
* was ordered to ADT on 10 December 1978
* was AWOL from 5 March 1979 through 18 June 1980
* was discharged on 19 August 1980

   a.  Item 2 of his DD Form 214 shows he served in the RA, which is incorrect.  Therefore, item 2 should be corrected to show he served in the ARNGUS.

   b.  A calculation of the period of his inactive service shows the following:

	1978  12  10   entered ADT
         - 1978  09  12   enlisted ARNGUS / MOARNG
         =          02  28   Total Prior Inactive Service

   c.  The applicant's period of AWOL, from 5 March 1979 through 18 June 1980, equates to a total of 472 calendar days.

   d.  A calculation of the periods of his active duty service shows the following:

1979  03  05   departed AWOL
         - 1978  12  10   entered ADT
         =    		02  25   net active duty (first period)


   1980  08  19   date discharged
        -  1980  06  19   RMC from AWOL
        =    		02	00   
        +   			  1   day inclusive
        =    		02	01   net active duty (second period)


    00  02  25   net active duty (first period)
       00  02  01   net active duty (second period)
      =		    04  26   Net Active Service This Period

   e.  Thus, it would be appropriate to show his correct net active service this period and total period of inactive service in items 12c and 12e, respectively, of his DD Form 214.

5.  The evidence of record shows the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

	a.  His request for discharge shows he acknowledged he understood that he might be discharged under other than honorable conditions.  In addition, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

	b.  The evidence of record shows that the applicant served on active duty less than 3 months before he went AWOL.  Moreover, he remained in an AWOL status for more than 15 months.

	c.  Thus, the offense that led to his discharge action far outweighs his overall record of service during the period of service under review.

	d.  Considering all of the facts of the case, his characterization of service was appropriate and equitable.

6.  The applicant's record of service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  Therefore, in view of the foregoing, there is no basis for granting the applicant an honorable or a general discharge.

7.  Records show that the RE codes "3" and "3B," establishing the applicant's ineligibility for enlistment/reenlistment without an approved waiver, were correctly entered on his DD Form 214 in accordance with governing Army regulations.  Therefore, the reentry codes that are shown on the applicant's DD Form 214, as corrected by a DD Form 215 issued on 20 April 1983, are appropriate and correct.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting the entry from item 2 and entering "ARMY/ARNGUS;"

   b.  deleting the entry from item 5 and entering "24 November 1957;" and

   c.  deleting the entries from items 12a, 12c, and 12e and entering the following entries:

* item 12a:  "78  12  10"
* item 12c:  "00  04  26"
* item 12e:  "00  02  28"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the reentry eligibility codes and an upgrade of his discharge.  




      _______ _  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)                                         AR20120021192



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ABCMR Record of Proceedings (cont)                                         AR20120021192



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