IN THE CASE OF: BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150016976 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 IN THE CASE OF: BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150016976 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. IN THE CASE OF: BOARD DATE: 11 April 2017 DOCKET NUMBER: AR20150016976 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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 23 December 1985, to show an upgraded characterization of service; his narrative reason for separation as "for the convenience of the government"; and different separation and reenlistment codes. 2. The applicant states, in effect: a. His record of Article 15s indicates (he committed) only isolated or minor offenses. His record of being absent without leave (AWOL) was due to the minor offenses and harsh treatment. His ability to serve was impaired by his youth and immaturity. b. At 17 years old, he was taken from school by his parents, due to marijuana and alcohol abuse, and he was forced to join the military. After his parents (gave parental consent) he excelled in all of his training. He was given the arm band of leadership in basic training at Fort Leonard Wood, MO. c. Due to his performance at basic training, he was sent to Fort Lee, VA for advanced individual training (AIT). He was placed on the airborne recruitment list without his knowledge. Jump school at Fort Benning, GA was a great challenge but once again he passed easily. d. He later arrived at Fort Bragg, NC, where once again without his knowledge, was trained in military occupational specialty (MOS) 76W (Petroleum Supply Specialist) which was again hot. He was in charge of the Supply Warehouse while stateside. He was one of four in his company that received an Army Commendation Medal (ARCOM) during Grenada and he also received an Army Achievement Medal for the operation. He finished in the top 25 of over 500 in the 12-mile battalion runs. e. During that entire wonderful life, he was still having major issues with alcohol and marijuana. Peer pressure at his young age was overwhelming. In order to be a great leader, his thoughts were to join the men in all activities and stay on their level. How wrong were those thoughts? f. After his first Article 15, he told his first sergeant he needed help. He tried to do his best with the marijuana but the alcohol was indeed the undoing. As he attempted to drive his friend's car back to the base, the military police (MPs) pulled him over on post, and his first sergeant had to get him out of jail. He was again threatened with more reductions in pay, demotion in rank, etc. g. After Grenada and then Honduras, and all the reconnaissance patrols in the jungle with no real help for his problem, he ran because he felt he was just being used as a pawn. Panama was next on the unit's calendar. He understands he was wrong for running. h. At Fort Dix, NJ, his counsel told him, due to his outstanding service, the Army wanted him to reenlist for a $20,000 bonus. But if he wanted to sign-out and skip the driving under the influence (DUI) court-martial, he would receive a general discharge. He served “greatly” but needed direction, not abuse. He wishes he could do it all over again; he loved it. The Army lied to him about his discharge, or he wouldn't have agreed. 3. The applicant provides a self-authored statement. 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 22 September 1982 at 17 years of age. He entered active duty, completed his initial entry training (IET), and was awarded military occupational specialty 57F (Graves Registration Specialist). 3. Permanent Orders 36-7, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, GA, on 24 February 1983, shows the applicant was awarded the Parachutist Badge after completing IET. 4. The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he received an automatic promotion to private/E-2 on 22 March 1983, after reaching 6 months of time in service. 5. The applicant was assigned to Company A, 407th Service and Supply Battalion, 82nd Airborne Division, Fort Bragg, NC, on or about 24 March 1983. 6. A DA Form 4187 (Personnel Action), dated 19 September 1983, shows he was reduced to private/E-1, effective 15 September 1983. There is no record of non-judicial punishment within his record. 7. Permanent Orders 211-105, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC on 5 December 1983, shows the applicant was awarded the ARCOM for meritorious achievement during the period 25-31 October 1983. 8. Orders, 237-115, issued by Headquarters, 82nd Airborne Division, Fort Bragg, NC, on 23 December 1983, show the applicant was awarded MOS 76W (Petroleum Supply Specialist) as his secondary MOS, effective 19 December 1983. 9. A DA Form 4187, dated 18 August 1984, shows the applicant's duty status was changed from present for duty (PDY) to AWOL on or about 17 August 1984. 10. A DA Form 4187, dated 16 September 1984, shows the applicant was dropped from the rolls (DFR) of the Army, on or about 16 September 1984. 11. A DA Form 4187, dated 31 October 1985, shows the applicant's duty status was changed from DFR to PDY, on or about 28 October 1985, following his return to military control at the U.S. Army Personnel Control Facility (USAPCF), Fort Dix, NJ. 12. Fort Dix Control Facility (FDCF) Form 691A, dated 30 October 1985, shows the applicant was asked "Why did you go AWOL?" The applicant annotated this section by stating, "Because I didn't like it anymore." 13. A DA Form 458 (Charge Sheet), dated 1 November 1985, shows court-martial charges were preferred against the applicant for being AWOL from his unit, from on or about 17 August 1984 through 28 October 1985. 14. The applicant consulted with legal counsel on 1 November 1985 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. He acknowledged in his request for discharge that he understood if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised as to the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may 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. b. He declined to make a statement in his behalf. 15. On 7 November 1985, the applicant's immediate company commander recommended the applicant’s discharge, for the good of the service, with an under other than honorable conditions characterization of service. 16. The separation authority approved the applicant's request for separation on 19 November 1985, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be discharged under other than honorable conditions. 17. The applicant was discharged from the Army on 23 December 1985. The DD Form 214 he was issued confirms: * he was discharged under the provisions of Army Regulation 635-200, chapter 10 * his character of service was under other than honorable conditions * he served on active duty for 2 years and 21 days, with time lost from 17 August 1984 to 28 October 1985 (432 days) * block 26 (Separation Code) shows his separation code as "KFS" * block 27 (Reenlistment Code) shows "RE-3, 3B, 3C" 18. There is no evidence the applicant was told he would receive a general discharge after requesting separation in lieu of trial by court-martial. 19. The applicant's medical record is not available for review in this case. There is no record of substance abuse or treatment for substance abuse within his record. 20. The applicant did not apply to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. REFERENCES: 1. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) in effect at that time, covers eligibility criteria, policies, and procedures. This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. a. Table 3-1 provides a list of RE codes. (1) RE Code "1" applies to Soldiers who have completed their terms of active service who are considered qualified for enlistment if all other criteria are met. (2) RE Code "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 unless a waiver is granted. (3) RE Code "3B" applies to Soldiers who have lost time during their last period of service, they are ineligible for enlistment unless a waiver is granted. (4) RE Code "3C" applies to Soldiers who have completed over 4 months of service who do not meet the basic eligibility pay grade requirements, or have been denied reenlistment under the qualitative retention process. They are ineligible for enlistment unless a waiver is granted. b. Paragraph 3-6 states depending on the needs of the Army, waivers may not be considered, even though the disqualification is waivable. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation codes to be used for these stated reasons. The regulation shows the separation code of "KFS," as shown on the applicant's DD Form 214, was the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10, in instances where the discharge was determined to be for the good of the service, in lieu of court-martial. 3. 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. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show an upgraded characterization of service; his narrative reason for separation as "for the convenience of the government"; and different separation and reenlistment codes. He contends his discharge should be upgraded because he was going through a hardship with substance abuse and he did not receive assistance. 2. The applicant enlisted in the Regular Army at age 17 years. At the age of 20, he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. 3. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. There is no indication he was told he would receive a general discharge. 4. The applicant states he received Article 15s for minor offenses; however, there is no record of indiscipline prior to going AWOL, but a DA Form 4187 shows he was reduced to the rank of private/E-1. Still, he did, in fact, go AWOL for a period of approximately 432 days. Following his return to military control, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge. The separation authority determined his overall record of service did not rise to the level required for either an under honorable conditions (general) or honorable discharge. 5. The applicant's was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions characterization of service. His narrative reason for separation was assigned based his characterization of service. Absent this condition, there was no fundamental reason to process him for separation. Therefore, the only valid narrative reason for separation permitted under this paragraph is "for the good of the service – in lieu of trial by court-martial." 6. The assigned separation code of "KFS" is the appropriate separation code for Soldiers separated under the provisions of Army Regulation 635-200, chapter 10. 7. The assigned reenlistment codes are the appropriate reenlistment codes for Soldiers who had lost time and who were denied reenlistment without a waiver in accordance with the governing regulation at that time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016976 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2