IN THE CASE OF:	  

		BOARD DATE:	  26 May 2014

		DOCKET NUMBER:  AR20130019110 


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 and his reentry eligibility (RE) code of 3.

2.  The applicant states that as a young troop, he had never been in any type of trouble.  He made a mistake by taking something that did not belong to him and when he tried to correct it, everything got out of hand.  As a result, he was discharged with a bad RE code.  Due to circumstances with his family, he could not follow up on taking care of this error sooner.  This incident was 32 years ago and he is asking to have his RE code and character of service changed so that he can go on with his life as someone who was proud to serve his country.

3.  He provides a self-authored statement and three character reference letters.

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 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's record shows he was born on 24 April 1961.  On 24 July 1978 he enlisted in the Regular Army at the age of 17 years and 3 months.  Upon completion of initial entry training he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 11 February 1981, which shows he accepted nonjudicial punishment (NJP) for violating Article 86, UCMJ by failing to go at the time prescribed to his place of duty on 24 January 1981.  A portion of his punishment for this offense was suspended for a period of 3 months as long as he stayed out of trouble.

4.  On 1 March 1981, the suspended portion of his punishment for the aforementioned NJP was vacated for an unspecified reason and the applicant was reduced in rank/pay grade from private (PV2)/E-2 to private (PV1)/E-1.

5.  On 29 March 1981, a Special Agent of the U.S. Army Criminal Investigation Command (CID) informed the applicant that he was under investigation due to suspicion of housebreaking and larceny and advised the applicant of his rights.  The applicant indicated his understanding of his rights, that he desired to waive those rights, and that he was willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer first and without having a lawyer with him.

	a.  A DA Form 2823 (Sworn Statement), dated 29 March 1981, shows that the applicant confessed to breaking into a building and stealing a video cassette recorder (VCR).  He stated that he did it in order to get out of his unit and he wanted to get something across to the company commander.  He noted that he received punishment for all of the things that he did.  He had requested transfers before, but they had not been granted.  The applicant explained that he had left the orderly room after receiving a pass and as he was walking along he was thinking about going absent without leave (AWOL) or home.  As he passed the building, he noticed a window open.  He stared at it a little while and then went to the window, slid it open and went inside.  Once inside, he looked around for something of value and saw the VCR.  At this point the applicant stated that he did not wish to answer any more questions.

	b.  On the same date, the military policeman (MP) who had arrested the applicant rendered a DA Form 2823 to elaborate on or to clarify portions of the investigation not covered elsewhere on previous statements or documents.  He explained how a security guard had caught the applicant attempting to depart the compound and had escorted him to the MP gate.  In the applicant's possession was a green bag that contained a VCR.  The applicant attested that he had been on his way to turn the VCR in to the police when he was apprehended.  The MP then handcuffed the applicant and began to drive him to the police station.  While enroute, the applicant asked the MP to cut him a break and allow him to escape because he did not want to go to jail.

6.  His record contains a DD Form 458 (Charge Sheet), dated 20 April 1981, which shows he was charged with violation of the following Articles of the UCMJ for the specifications shown:

	a.  Charge I - one specification of violation of Article 121 by stealing a VCR, of a value of about $982.00, the property of the U.S. Government, said offense occurring on a military installation outside the territorial limits of the United States and not being cognizable by in a U.S. civilian court.

	b.  Charge II - one specification of violation of Article 130 by entering a building, the property of the U.S. Government, with the intent to commit a criminal offense, to wit:  Larceny of U.S. Government Property, therein.

7.  In view of the foregoing charges, the applicant's chain of command recommended that he be tried by special court-martial.

8.  On 12 May 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant acknowledged he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  The applicant's company, battalion, and brigade level commanders recommended approval of the applicant's request with a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

10.  On 15 May 1981, the separation authority approved the applicant's request and directed that he be discharged under other than honorable conditions and issued a DD Form 794A.

11.  On 18 June 1981, the applicant was discharged accordingly.  The DD Form 214  (Certificate of Release of Discharge from Active Duty) that he was issued at the time shows in:

	a.  Item 24 (Character of Service), his service was characterized as under other than honorable conditions.

	b.  Item 25 (Separation Authority), he was separated under the provisions of chapter 10 of Army Regulation 635-200.

	c.  Item 26 (Separation Code), he was assigned a Separation Program Designator (SPD) code of JFS.

	d.  Item 27 (Reentry Code), he was assigned an RE code of 3.

12.  On 13 June 1988, the Chief of the Army Discharge Review Board (ADRB) informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB had determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

13.  The applicant provides three character reference letters wherein the authors attest that he was a good Soldier prior to making a mistake.  He has matured since then and displays a high degree of integrity, responsibility, and generosity.  He is definitely a leader rather than a follower.  He's an excellent Dad and has proven to be a positive role model by providing young people in his community and also family member's opportunity to learn good sportsmanship at the local centers in his area.  He played a key role in assisting his sister with raising her children and served as their father figure, for which they are all very thankful.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  Army Regulation 635-200, 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.  Army Regulation 635-200, 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 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, 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, in pertinent part, that the SPD code JFS was the appropriate code to assign to Soldiers separated under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table indicated that RE code 3 was the proper code to assign members separated with SPD code JFS.

16.  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.  Chapter 3 of that regulation prescribes the basic eligibility for prior service applicants for enlistment.  This chapter includes a list of armed forces RE codes, including RA RE codes:

	a.  RE code 1 applies to persons who are considered fully qualified for reentry or continuous service at the time of separation;

	b.  RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; and 

	c.  RE code 4 applies to persons separated from their last period of service with a nonwaivable disqualification.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests were each carefully considered and found to lack merit.

2.  The fact that the applicant was 19 and 20 years of age at the time he committed his offenses is duly noted.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, his post-service achievements were considered.  However, post-service achievements alone are not a basis for upgrading a discharge.  

3.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows he voluntarily requested discharge from the Army in lieu of trial by court-martial.

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  In view of the foregoing, the applicant was appropriately assigned the RE code of 3 at the time of discharge.  Therefore, he is not entitled to an upgrade of his RE code.

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)                                         AR20130019110





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019110



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1