BOARD DATE: 29 June 2017 DOCKET NUMBER: AR20160004709 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____x___ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 June 2017 DOCKET NUMBER: AR20160004709 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. BOARD DATE: 29 June 2017 DOCKET NUMBER: AR20160004709 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 correction of the narrative reason for separation. He also requests an opportunity to appear before this Board. 2. The applicant states, in effect, at the signing of his discharge documents, he felt as if he was placed in a position of inferiority. He believes a clarification of information was disregarded; therefore, he was not able to understand the premise of the discharge or his options at the time. He also states: a. He was separated from the Army in 1985 under the authority of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with a discharge under other than honorable conditions. He was assigned the separation code of KFS and reenlistment eligibility (RE) codes of RE-3, RE-3B, and RE-3C. He was stationed at Fort Hood, TX, and had completed 2 years and 10 months of active service. He was ready to reenlist before he was "confronted with an Article 15" that turned his life around. He was denied the opportunity to make the Army a career. His father had served in Korea and World War II and he was the youngest of five brothers who served in the Armed Forces. b. His intentions were to serve his country and make his family proud as his family members had done. However, that opportunity was taken away by an "Article 15." He was born and raised in Puerto Rico and English was his second language. This limited his ability to fully comprehend his situation and prepare for what would affect him in years to come. An "Article 15" was given to him for "disobeying an order" from a noncommissioned officer (NCO) who requested that he move back into the company's quarters after living off base with his parents for approximately a year. He had brought his parents from Puerto Rico. He lived with them off base and supported them as his dependents. While he was on temporary duty (TDY) in Honduras for 6 months, his parents had moved to Camden, NJ, with the intention of moving back upon his return. When he returned to the States (Fort Hood, TX), he was immediately confronted by the platoon sergeant, who was fairly new to the company, requesting that he move back on base because his parents were not living with him at the time. c. He was assigned to the 411th Military Police (MP) Company and reported to the mess hall sergeant of the MP battalion. He was responsible for the kitchen's overnight personnel and food services provided to the MPs at that time. He was single at the time and made a fair amount of poor choices and walking away was one of his biggest regrets. Leaving the service felt right at the time, but it was wrong. He tried to avoid getting the "Article 15." He spoke with his first sergeant, commander, and the chaplain, and was advised there was nothing they could do to help him. He felt perhaps the charges were unjustified. d. This has been weighing on his mind for the past 30 years. If he only knew then what he knows now, his life would have been different. He is seeking peace of mind and to be proud of his accomplishments in serving this country. 3. The applicant provides multiple letters of support. 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 25 August 1982 and he held military occupational specialty 94B (Food Service Specialist). He was assigned to the 411th MP Company and the 401st MP Company, both at Fort Hood, TX. 3. On 1 May 1985, he accepted nonjudicuial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from his sergeant to get a haircut and for failing to obey an order from his sergeant to prepare his room and locker for inspection. His punishment consisted of reduction to pay grade E-3, suspended forfeiture of pay, and extra duty and restriction. 4. On 2 May 1985, he departed his unit in an absent without leave (AWOL) status and he was dropped from Army rolls as a deserter on 1 June 1985. He ultimately surrendered to military authorities at Fort Meade, MD, on 4 September 1985. 5. On 11 September 1985, court-martial charges were preferred against him for one specification of AWOL from 2 May to 4 September 1985. On the same date, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge, the possible effects of a discharge under other than honorable conditions if his request for discharge in lieu of trial by court-martial were approved, and the procedures and rights available to him. Following consultation with legal counsel, he requested discharge under the provisions of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement in his own behalf 6. In his statement, the applicant indicated, in effect: * he was AWOL because he had a problem with his NCO, during the same week he was going to reenlist, he received an "Article 15" * he told the platoon sergeant that he was guilty of the haircut violation, but he was not guilty of the locker inspection violation * when he went to the reenlistment office, he was told he could not reenlist because of the "Article 15" he received 7. On 30 September 1985, the separation authority approved the applicant's request for discharge under the provisions of AR 635-200, chapter 10, and directed the issuance of a discharge under other than honorable conditions and reduction to the lowest enlisted grade, if applicable. On 29 October 1985, the applicant was discharged accordingly. 8. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions. This form shows he completed 2 years, 10 months, and 3 days of creditable active service and he had lost time from 2 May to 3 September 1985. a. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Army Service Ribbon, and Army Achievement Medal. b. Item 26 (Separation Code) contains the entry KFS. Item 27 (Reenlistment Code) contains the entries RE-3, 3B, and 3C. Item 28 (Narrative Reason for Separation) contains the entry "For the Good of the Service - In Lieu of Court-Martial." 9. There is no indication in his records that he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 10. He provided multiple character-reference letters as follows: a. The author of the first letter states she has known the applicant for over 20 years. During that time she has been amazed at his generosity, kindness, and enthusiasm. In one case, he took into his home a family with children relocating from Puerto Rico. He helped both spouses find a job and within a very short time they were able to start a new life with their own home. She is impressed with his strong family ethics, values, loyalty, commitment to helping others, and his ability to see what others overlook or take for granted. b. In another letter, the author states he has known the applicant since 2003 and describes him as a well-known resident of Seffner, FL, and a personal friend. Since he (the author) retired from the Air Force as a major, he (the applicant) welcomed him to his home and has been instrumental in helping him cope with his disabilities. As a 100-percent disabled man, he is limited in the activities he can perform. The applicant is always willing and available to help him. The applicant goes the "extra mile" for him. The applicant is well liked by others in the community and the church. c. In a third letter, the author states he and the applicant have been friends and close neighbors for the past 5 years. The applicant has taught him a lot about life and family tradition. The applicant is a perfect father; he is very trustworthy and reliable. He offers assistance to anyone in need in the neighborhood. d. In a fourth letter, the applicant's wife states she and the applicant have raised two beautiful daughters together and have gone through their fair share of good and bad times. In the time she has known her husband, she has witnessed many aspects of his personality and work ethics, all of which are highly impressive. He is a person of good moral character who cares about the people around him and strives to do right in all situations. He is a tireless worker, dedicated to his family and any job he is performing. He is a dreamer and he is constantly looking toward the future. He is honest, kind, and has a great deal of integrity. Those who know him have nothing bad to say about him. REFERENCE: 1. AR 635-200 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. 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. 2. AR 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. It states the SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. 3. AR 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. 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 applies 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. (RE-3B applies to those with lost time and RE-3C applies to those with a grade restriction). 4. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interests of equity and justice in this case. 2. The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. The separation authority determined that this misconduct rendered his service unsatisfactory and that his service did not rise to the level required for a general or an honorable characterization. 4. The evidence of record further confirms that his narrative reason for separation and separation code were assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. Absent the AWOL offense, there was no reason to prefer court-martial charges against him, and absent the court-martial charges, there was no reason to process his voluntary discharge. 5. The narrative reason for separation and separation code associated with this type of discharge are "in lieu of trial by court-martial" and the separation code of "KFS." The applicant was assigned the appropriate narrative reason for separation and separation code associated with his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004709 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004709 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2