BOARD DATE: 17 December 2015 DOCKET NUMBER: AR20150006068 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, an upgrade of his service characterization from under other than honorable conditions to under honorable conditions (general). He further requests an upgrade of his reentry (RE) code from "4" to an unspecified, more favorable RE code. 2. The applicant states he was treated in a way that violates the Uniform Code of Military Justice (UCMJ). His receipt of Article 15s for bogus charges constituted harassment. The Article 15s were later removed from his official military personnel file (OMPF). Ultimately, he was punished for multiple Article 15s that are no longer in his file. He made choices under duress, while those in charge violated the UCMJ by harassing him and writing bogus Article 15s that were later removed from his file. 3. In a separately provided 4-page, hand-written statement, the applicant states: a. He arrived at Fort Sill, Oklahoma for basic training on 21 October 1998. He completed basic training on 9 January 1999; he could not have asked for a better experience. He attended Advanced Individual Training (AIT) for qualification in military occupational specialty (MOS) 13M (Multiple Launch Rocket System Crewmember). He began his MOS training on 13 January 1999 and graduated on 13 February 1999; however, he was constantly harassed throughout the course by one of his drill sergeants. b. He was given multiple Article 15s for various reasons that clearly illustrate the harassment he was subjected to, including wearing civilian clothing off duty and chewing gum. These Article 15s were later removed from his military records. As a result of his Article 15s, he was given restrictions and his drill sergeant threatened to continue giving him Article 15s until he could get him kicked out of the Army. He never understood why his drill sergeant hated him so; although, his drill sergeant harassed many privates. c. He was willing to correct his faults. He made it through 3 months with Ranger-qualified drill sergeants; now, all of a sudden, he had all of these issues with AIT drill sergeants. He was a hold-over waiting to go to Korea; however, his port call never came. Protocol wasn't followed; he was supposed to have been reassigned or retrained in another MOS. He was not presented with these options. d. Instead, he was harassed with bogus Article 15s. He got tired of the harassment and asked to speak to someone of higher rank or an Inspector General. He was threatened that if he did, he would receive another Article 15 for not using his chain of command and not following orders. Under duress, he lost confidence in the Army and left, essentially going absent without leave (AWOL). When he turned himself in, he received more threats. He was forced to sign paperwork under duress. e. He joined the Army to protect people, not to be threatened, ignored, and forgotten by the people in charge of him on the same team. The UCMJ was violated, but not by him. He acted under duress. He was only 19 years old and his drill sergeant had no right to behave the way he did, writing bogus Article 15s and harassing privates. He doesn't want to waste anyone's time, he just wants his service characterization and RE code upgraded. 4. The applicant provides a copy of his 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, at the age of 19, on 21 October 1998. He completed his initial entry training at Fort Sill, Oklahoma. Following the completion of his AIT course of instruction, he was awaiting movement to his follow-on assignment in the Republic of Korea. 3. He was reported by his unit as AWOL on 23 April 1999. He was dropped from the rolls of the Army on 24 May 1999. He was returned to the control of the Army on 16 July 1999 at Fort Sill, Oklahoma. 4. Upon his return to military control, he was assigned to the Personnel Control Facility at Fort Sill. 5. Court-martial charges were preferred against him on 19 July 1999 for absenting himself from his unit from on or about 23 April 1999 through on or about 16 July 1999. 6. The applicant consulted with legal counsel on 22 July 1999 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 the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 7. In his request for discharge, he acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He declined to submit a statement in his own behalf. 8. The appropriate separation authority approved his request for discharge on 2 November 1999 and directed the issuance of an under other than honorable conditions discharge. 9. The applicant was discharged accordingly on 8 May 1996. The DD Form 214 he was issued shows in: * Item 24 (Character of Service), his service was characterized as under other than honorable conditions * Item 25 (Separation Authority), he was discharged under the provisions of Army Regulation 635-200, chapter 10 * Item 26 (Separation Code), his separation code was "KFS" * Item 27 (Reentry Code), his RE code was "4" * Item 28 (Narrative Reason for Separation), he was discharged in lieu of trial by court-martial 10. The applicant's OMPF is void of any DA Form(s) 2627 (Record of Proceedings Under Article 15, UCMJ) documenting his receipt of nonjudicial punishment under the provisions of Article 15 of the UCMJ. 11. The Army Discharge Review Board denied his request for an upgrade of his discharge on 11 September 2002. 12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. c. 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. d. Prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. 13. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, USAR, 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. * the RE code "1" applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated * the RE code "3" applies to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable 14. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and is prepared for all personnel at the time of their retirement, discharge, or release from active duty. a. The correct entry for item 26 is obtained from Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), which provides the corresponding SPD code for the regulatory authority and reason for separation. b. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) determines Regular Army and U.S. Army Reserve reentry eligibility and provides regulatory guidance on RE codes. 15. Army Regulation 635-5-1 provides that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. At the time of her separation, the SPD code "KFS" was the appropriate SPD code for Soldiers separated in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. 16. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers and shows the SPD code and its corresponding RE code. The table in effect at the time of her release from active duty shows the SPD code of "KFS" had a corresponding RE code of "4." DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his service characterization from under other than honorable conditions to under honorable conditions (general), and an upgrade of his RE code from "4" to an unspecified, more favorable RE code, was carefully considered; however, there is insufficient evidence to support his request. 2. The applicant contends: a. His service characterization should be upgraded because he was young at the time of his service. Records show that he was 19 years of age at the time of his offenses; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their periods of military service. b. He was subjected to unreasonable harassment from his AIT drill sergeant and he signed his request for discharge in lieu of trial by court-martial under duress. However, his record is void of any documentation that substantiates these contentions. Additionally, he benefitted from the advice of counsel during his discharge proceedings. 3. The evidence of record shows the applicant was charged with the commission of an offense punishable under the 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. 4. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge accurately reflects his overall record of service. 5. Based on his record of indiscipline, including a violation of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel, it did not support the issuance of an honorable or general discharge by the separation authority at the time, and it does not support an upgrade of his discharge now. 6. His RE code was assigned based on his voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. Absent the court-martial charges, there was no fundamental reason for him to request a discharge from the Army. The underlying reason for his discharge was his voluntary request for discharge in lieu of trial by court-martial. The only valid narrative reason for separation permitted under this paragraph is "In Lieu of Court-Martial." 7. The appropriate SPD code is "KFS" and the corresponding RE code associated with this type of discharge is a "4." Therefore, he received the appropriate RE code associated with the authority and narrative reason for his separation. 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) AR20100014558 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006068 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1