BOARD DATE: 2 May 2017 DOCKET NUMBER: AR20150018061 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: 2 May 2017 DOCKET NUMBER: AR20150018061 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: 2 May 2017 DOCKET NUMBER: AR20150018061 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's general discharge to honorable and amendment of his reentry eligibility (RE) code. 2. Counsel states: a. After a successful discharge upgrade by the Army Discharge Review Board (ADRB) in 2010, the applicant's discharge and RE code should be further upgraded to allow him to enlist in the Armed Forces. b. The applicant requests a waiver of the statute of limitations because he was awaiting mental health reports that his daughter had sufficiently recovered so he could safely leave the family for military service. He was checking into finishing his military career, given his age. The reasons for enforcing the statute of limitations are clearly inapplicable. Following his successful ADRB discharge upgrade, there is no concern of failed memories, stale records, or unavailable information in this case. 3. Counsel provides: * two-page undated brief * 14-page brief, dated 30 August 2015 * photographs of the applicant and his family * nine character-reference letters * bankruptcy court petition * ADRB Case Report and Directive, dated 15 November 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * excerpt from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 4 October 2000 for a period of 3 years. 3. He was absent without leave (AWOL) from 4 May 2001 to 25 April 2004. On 5 May 2004, charges were preferred against him for the AWOL period. 4. On 6 May 2004, he consulted with counsel and 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. He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge under other than honorable conditions (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 an UOTHC discharge. He elected not to make a statement in his own behalf. 5. On 29 June 2004, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an UOTHC discharge and reduction to the rank/pay grade of private/E-1. 6. On 6 August 2004, he was discharged the rank/pay grade of private/E-1 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 9 months and 26 days of creditable active service with 1,179 days of lost time (1,087 days prior to his expiration term of service and 92 days subsequent to his expiration term of service). His service was characterized as UOTHC. 7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * 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 8. On 15 November 2010, the ADRB upgraded his UOTHC discharge to general under honorable conditions and restored his rank/pay grade to private two/E-2. The ADRB determined his service characterization was too harsh based on the circumstances (extraordinary family situation) surrounding his period of AWOL and was inequitable as a result. However, the ADRB determined his reason for discharge was both proper and equitable. 9. Counsel provided a two-page undated brief stating: a. The applicant has a promising Army future. He was a solid performer in basic training, but learned of huge and escalating problems at home. During advanced individual training, he heard his wife was involved with drug addiction and adultery, endangering their two children. Being young and inexperienced, he tried every solution, but he received no support from his chain of command. He eventually remained at home to protect his children, one of whom had been sexually molested. His absence was terminated by apprehension and he was issued an UOTHC discharged in lieu of trial by court-martial. b. The ADRB found extraordinary circumstances and, upon personal presentation, awarded him a general discharge. He now seeks a change in his RE code so he can serve in the military again. 10. Counsel also provided a 14-page brief, dated 30 August 2015, stating: a. The applicant joined the military and enjoyed the start of a promising career. Then he went home to find his wife involved in drug addiction and adultery with looming danger to their children. He remained at home to protect his children and the military declared him AWOL and eventually picked him up. He accepted an undesirable discharge in lieu of trial by court-martial. This mistake has haunted him for 15 years. b. The applicant grew up the hard way. He lived with his father since the age of 12 because his mother left them. He joined the Army in 2000. He was married with two children. He put his wife through college. c. The applicant went to basic training and advanced individual training while his wife remained at home. During advanced individual training, he learned of escalating problems at home. His wife was overspending, dating other men, abusing drugs, and leaving their children in a bar. He unsuccessfully sought help from his leadership. He was authorized a short period of leave to handle the situation. He found out his youngest daughter had been sexually molested and she is traumatized to this day. d. The applicant's absence was terminated when he was stopped for an expired vehicle inspection sticker and was turned over to military authorities. e. In terms of equity, the applicant has suffered enough. He has been an exemplary citizen. He manages a Fortune 500 company (sic, counsel's brief later shows he is a regional manager for a large company), makes a comfortable living, and has the respect of his peers, supervisors, and customers. He never smoked or abused drugs. He does not drink. Outside this military situation, he has never been in trouble with the law. f. The applicant qualified for a hardship discharge. However, his chain of command was nonresponsive. g. The applicant wants to serve in the military again and would be a worthy candidate. 11. Counsel also provides numerous character-reference letters from the applicant's former wife, current wife, mother, daughter, and friends attesting: * to his former wife's behavior at the time in question * the applicant was a man of substantial character * he had problems at home * he was an honorable man * he is a professional, hard-working, and exhibits great moral character * he is a wonderful father and supportive husband * he is a great dad * he is dedicated, dutiful, and faithful * if given the chance to redeem himself, he would be a fine Soldier * he is a great American * he loves his family, country, and friends REFERENCES: 1. Army Regulation 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 UOTHC 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. 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. The SPD code of KFS applies to Soldiers voluntarily discharged in lieu of trial by court-martial. 4. The SPD/RE Code Cross Reference Table, dated 31 March 2003, shows that Soldiers assigned an SPD code of KFS will be assigned an RE code of 4. DISCUSSION: 1. The character-reference letters submitted on behalf of the applicant are noted. 2. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. The type of discharge directed and the reason for his discharge were appropriate at that time considering all the facts of the case. 3. In November 2010, the ADRB upgraded his UOTHC discharge to general under honorable conditions based on the circumstances (extraordinary family situation) surrounding his AWOL. The ADRB determined the reason for his discharge was both proper and equitable. 4. Counsel's contentions were carefully considered. However, the applicant's brief record of service included 1,179 days of lost time due to being AWOL. 5. The evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 10. The RE code associated with this type of discharge is 4 (a nonwaivable disqualification). //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018061 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018061 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2