BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20150017631 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: 18 May 2017 DOCKET NUMBER: AR20150017631 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: 18 May 2017 DOCKET NUMBER: AR20150017631 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) to show his character of service as “uncharacterized,” the narrative reason for separation as “entry level separation,” and the reentry code associated with these changes. 2. The applicant states, in effect, he was not in the service more than 180 days. He enlisted on 29 July 2008 and went absent without leave (AWOL) on 26 January 2009. He returned to the Personnel Control Facility on 3 May 2009, and was processed out on 7 May 2009. 3. The applicant provides no documents to support his request. 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, as 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 (RA) on 29 July 2008. 3. On 26 January 2009, the applicant went AWOL and he surrendered to military authorities on 4 May 2009. 4. On 7 May 2009, court-martial charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ), by being AWOL from 26 January to 4 May 2009. 5. On 7 May 2009, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial. a. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws b. He acknowledged he understood that, if his request for discharge was accepted, he might be issued an Under Other than Honorable Conditions Discharge Certificate. c. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. d. On 7 May 2009, the applicant and his counsel placed their signatures on his request for discharge. 6. The applicant’s chain of command recommended approval of the applicant’s request for discharge with the issuance of an under other than honorable conditions discharge. 7. On 17 June 2009, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge. 8. On 7 July 2009, the applicant was discharged in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) chapter 10, in lieu of trial by court-martial. His DD Form 214 shows he had completed 8 months and 1 day of net active service with 98 days of lost time. His service was characterized as under other than honorable conditions. He was assigned a separation code of “KFS” and a reentry code of “4.” REFERENCES: 1. Army Regulation 635-200 provides 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, an under other than honorable conditions discharge is normally considered appropriate. b. Chapter 11 of the regulation in effect at the time provided for the separation of personnel due to unsatisfactory performance or conduct, or both, while in an entry-level status. Nothing in this chapter precludes separation under another provision of this regulation when such separation is warranted. 2. Army Regulation 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 identifies the SPD code of "KFS" as the appropriate code to assign Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10, based on separation in-lieu of trial by court-martial. 3. The SPD/RE Code Cross Reference Table stipulates that an RE code of "4" will be assigned to members separated with an SPD code of "KFS." 4. 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 United States army Reserve (USAR). Chapter 3 (Basic Qualifications for Enlistment in the RA and USAR, Prior Service Applicants) shows RE-4 applies to Soldiers separated from the last period of service with a non-waivable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separations for any reason (except length of service for retirement) with 18 years or more of service. DISCUSSION: 1. Discharges under the provisions of Chapter 10 of Army Regulation 635-200, result from voluntary requests for discharge in lieu of trial by court-martial. The applicant 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 appear to have been fully protected throughout the separation process. 2. The evidence of record shows the applicant's contention that he was not in the service for more than 180 days is not true. He enlisted on 29 July 2008 and was not discharged until 7 July 2009. His DD Form 214 shows he had completed 8 months and 1 day of net active service and he had 98 days of lost time. 3. His request for discharge shows he wished to avoid a court-martial and the punitive discharge he might have received for being AWOL. The applicant was separated and assigned a reentry code in accordance with regulations in effect at the 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) AR20150017631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2