BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20150014700 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: 20 December 2016 DOCKET NUMBER: AR20150014700 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: 20 December 2016 DOCKET NUMBER: AR20150014700 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 amendment of his separation authority, separation code, reentry eligibility (RE) code, and narrative reason for separation. 2. The applicant states: a. He recently received a discharge upgrade from under other than honorable conditions (UOTHC) to general under honorable conditions by the Army Discharge Review Board (ADRB). He was so focused on getting his discharge upgraded and preparing for his personal appearance, he didn't ask for amendment of his separation authority, separation code, RE code, or narrative reason for separation. b. He received a discharge UOTHC and lived with it for 15 years because he was absent without leave (AWOL) and that was wrong. Given the circumstances, he feels he was put in a very bad situation by his hometown courthouse and he shipped out before the error was caught. c. He shipped to basic training with a civilian charge pending, but he had paperwork from the courthouse showing the charge was dismissed. He graduated from training and while he was on leave, he was told a warrant for his arrest had been issued while he was in training. He decided to be AWOL. 3. The applicant provides: * undated, self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty) issued on 25 June 2015 for the period ending 17 December 2001 * voided DD Form 214 for the period ending 17 December 2001 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * court documents * arrest record * U.S. Air Force documents * performance review and character-reference letter from his supervisor * service medical records 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 provided documentation showing: * he enlisted in the Air Force Reserve on 20 July 1999 * he was arrested on 27 August 1999 for resisting arrest * he was arrested on 28 August 1999 for breach of peace * he was discharged from the Air Force Reserve on 10 September 1999 * the breach of peace charge was dismissed, nol-prossed (no longer prosecuted), or he was found not guilty on 30 September 1999 3. He enlisted in the Regular Army on 3 January 2000 for a period of 3 years. 4. He provided: a. service medical records, dated March 2000, showing he was diagnosed with a pulled groin muscle and right hip pain; and b. a medical record, dated 1 May 2000, showing he underwent a bone scan of the pelvis and below. The findings revealed there is a hot focal uptake at the right femoral neck just above the lesser trochanter with a significant stress fracture. 5. He was AWOL from 31 May 2000 to 24 August 2000 and from 30 August 2000 to 24 October 2000. On 31 October 2000, charges were preferred against him for the AWOL period. 6. On 31 October 2000, he consulted with counsel and 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. He acknowledged that by submitting his request for discharge he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged UOTHC, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected not to make a statement in his own behalf. 7. On 29 November 2001, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC with reduction to private (PVT)/pay grade E-1. 8. On 17 December 2001, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 6 months, and 26 days of creditable active service with 176 days of lost time. His service was characterized as UOTHC. 9. His original DD Form 214 shows in: * item 24 (Character of Service) – UOTHC * item 25 (Separation Authority) – Army Regulation 635-200, chapter 10 * item 26 (Separation Code) – KFS * item 27 (Reentry Code) – 4 * item 28 (Narrative Reason for Separation) – In Lieu of Trial by Court-Martial 10. He provided documentation showing the charge of resisting arrest was dismissed, nol prossed, or he was found not guilty on 31 July 2002. 11. On 16 October 2013, the ADRB denied his request for a discharge upgrade. 12. On 27 April 2015, the ADRB upgraded his discharge UOTHC to general under honorable conditions and restored his rank to private two/E-2. However, the ADRB determined the reason for his discharge was both proper and equitable and voted not to change it. His DD Form 214 reissued on 25 June 2015 shows in: * item 24 – Under Honorable Conditions (General) * item 25 – Army Regulation 635-200, chapter 10 * item 26 – KFS * item 27 – 4 * item 28 – In Lieu of Trial by Court-Martial 13. He provided an undated, self-authored letter stating: a. He joined the Air Force in July 1999. He got into trouble in August 1999, but the charges (breach of peace and resisting arrest) were dropped in August 1999. He was released from the Air Force in September 1999 because of his arrest. b. He joined the Army in October/November 1999. He went back to the courthouse in October/November 1999 to have one of the two charges changed from nol prossed to not guilty so a moral waiver would be accepted. In 2000, he shipped to basic training. In March 2000, he was badly injured and his injury was misdiagnosed. While he was home on leave in May 2000, he underwent a bone scan and the results indicated he had a severe stress fracture, not a groin pull. In May/June 2000, he learned the paperwork for one of his charges was misfiled and a civil warrant was issued. He tried to have the charge corrected telephonically without success. He was AWOL in July 2000 and he turned himself in. c. It is unfair and unjust due to the clerical error made at the courthouse. He and his recruiter made multiple trips to the courthouse to make sure his paperwork was in order. The charge was changed to not guilty in 2002, but that was too late. d. He sustained an injury that was misdiagnosed as something minor. He found out later that it was a significant injury. He went to the out-processing center at Fort Knox and told the personnel the reason he was AWOL, but his story was just another story to them. e. He would never have joined the Army with a legal warrant against him. The Air Force recruiter called the Army recruiter and told him about his situation (he didn't clear the waivers after his arrest). If he had known his paperwork was not in order, he would have gladly pushed back his shipping date. 14. He also provided a performance review and character-reference letter from his supervisor, attesting that he has worked for him since 2001 and he has been an excellent employee. His supervisor states the applicant displays excellent character and is very trustworthy. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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 UOTHC is normally considered appropriate. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-8-19 (Enlisted Promotions and Reductions). 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 includes a list of RE codes. a. RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated. b. RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation but disqualification is waivable. c. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code KFS applies to Soldiers who are voluntarily discharged in lieu of trial by court-martial. 4. The SPD/RE Code Cross Reference Table, dated October 1999, shows Soldiers who are assigned an SPD code of KFS will be assigned an RE code of 4. DISCUSSION: 1. The applicant's contentions were carefully considered. However, the action by the ADRB to upgrade the character of his service to general under honorable conditions did not change the underlying reason for his discharge. 2. His separation authority, separation code, RE code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014700 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014700 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2