BOARD DATE: 6 June 2017 DOCKET NUMBER: AR20150018639 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: 6 June 2017 DOCKET NUMBER: AR20150018639 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: 6 June 2017 DOCKET NUMBER: AR20150018639 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 service characterization of under other than honorable conditions (UOTHC) to honorable. He also requests correction of his narrative reason for separation and his reentry eligibility (RE) code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states he feels his discharge does not characterize his service. He never received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, he was never a troubled Soldier, and he never received negative counseling statements. He felt he was lost in the system. a. He was ordered to reclassify to military occupational specialty (MOS) 75H (Personnel Service Specialist) by the medical review board. Upon reporting to Fort Jackson, SC, from Fort Campbell, KY, he attempted to check in to his new duty assignment and was never accepted. After several unsuccessful attempts to correct his situation with both units, the military police (MP), the Judge Advocate General's Office, the 101st Airborne Division Retention Office, and the 3d Brigade Retention Office, he was placed on restriction and ultimately given his civilian clothes and told to go back to Texas. He was advised to check in periodically with his local bases to see if his status had changed to absent without leave (AWOL). b. He contacted his Congressman for assistance and continued to contact the MPs on a monthly basis to see if he was listed as AWOL. During this time, he started working for the Delta County Sheriff's Office. c. Eight months after the last time he contacted the Fort Hood MPs, he was advised to contact Fort Sill for assistance. He reported to Fort Sill on 12 February 2001 and found out that he was still not listed as AWOL. He was checked into the Personnel Control Facilities (PCF) unit and 3 days later he was discharged UOTHC in lieu of trial by court-martial. d. He tried to get his situation corrected and did the honorable thing. He was given a discharge that does not fit his character of service and he has documentation from his Congressman to prove it. 3. The applicant provides: * DA Form 638 (Recommendation for award) * memorandum for distribution * Permanent Orders 206-00182 * Commander's evaluation for MOS/Medical retention board * DA Form 3349 (Physical profile) * Central Issue Facility (CIF) final clearance documents * DA Form 4856 (General counseling form) * letter from his Congressman * payment of billeting fees letter * two letters of recommendation 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. Having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 8 May 1996 and he held military occupational specialty (MOS) 11B (Infantryman). 3. The applicant's records show he was assigned to Company A, 2nd Battalion, 187th Infantry, Fort Campbell, KY, from 10 June 1996 to 28 June 1999. For the same time period, the applicant provided: * DA Form 638 (Recommendation for award), dated 12 January 1997, showing he deployed to Saudi Arabia and was awarded the Army Achievement Medal * memorandum for distribution, dated 13 February 1997, showing he was awarded the Joint Meritorious Unit Award * Permanent Orders 206-00182, dated 25 July 1997, showing he was awarded the Air Assault Badge * memorandum, Commander's evaluation for MOS/Medical Retention Board, dated 16 December 1998, stating he cannot and has not been able to perform his MOS (11B) duties and recommending his separation from the military * DA Form 3349 (Physical profile), dated 17 February 1999, showing that he is on permeant profile for bilateral knee pain * Central Issue Facility (CIF) final clearance documents, dated 25 June 1999, showing he received his gear and final clearance 4. On 29 June 1999, the applicant departed his unit in a casual leave status en route to Korea. 5. There is no documentation in the applicant's records showing his whereabouts from 30 June to 20 October 1999. However, the applicant provided: a.  a DA Form 4856 (General counseling form), dated 29 July 1999, stating he was counselled for failing to follow orders and failing to report to his appointed place of assignment (advanced individual training, Fort Jackson, SC); b.  a letter from Congressman M____ S____ to the applicant's wife, dated 3 August 1999, stating the Congressman would contact the Army to inquire about her husband's status in the Army; and c.  a letter for payment of billeting fees addressed to applicant from the Army Training Center and Fort Jackson, dated 31 October 1999, stating the applicant stayed at Fort Jackson in Magruder Transient Area Lodging from 24 July to 7 October 1999, and he had an outstanding balance of $1,479.00. 6. On 21 October 1999, his duty status was reported as AWOL. His records show he was subsequently dropped form the unit rolls (DFR), but no dated is given. He surrendered to military authorities at Fort Sill, OK, on 15 August 2000 and was voluntarily placed in an excess leave status on the same day. 7. On 16 August 2000, the Commander, Battery A, Personnel and Support Battalion, Fort Sill, preferred court-martial charges against him for one specification of being AWOL from 21 October 1999 to 15 August 2000. 8. On 18 August 2000, the applicant consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under less than honorable conditions, and the procedures and rights available to him. 9. Following consultation with legal counsel, he 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. In his request for discharge, he acknowledged: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood he could be discharged under conditions other than honorable and furnished a UOTHC Discharge Certificate * he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge UOTHC 10. On 1 February 2001, the applicant's intermediate commander recommended approval of his separation with the issuance of a discharge UOTHC. In her endorsement, the commander opined that the applicant had become disillusioned with the military and that retention was not in the best interest of the Army. A staff judge advocate reviewed the applicant's request for discharge and found it legally sufficient. 11. On 15 February 2001, the separation authority approved the applicant's request and directed the issuance of a discharge UOTHC, immediate separation, and reduction to the lowest enlisted grade, if applicable. 12. On 9 March 2001, the applicant was reassigned to the U.S. Army Personnel Center, Fort Sill, and 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, with his service characterized as UOTHC. He completed 4 years, 3 months, and 20 days of creditable active service and accrued 299 days of lost time. His DD Form 214 shows in: * Item 24 (Character of Service) – UOTHC * Item 26 (Separation Code) – KFS * Item 27 (Reentry Code) – 4 * Item 28 (Narrative Reason) – IN LIEU OF TRIAL BY COURT-MARTIAL 13. On 15 November 2002, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB determined he was properly and equitably discharged. As such, his request for an upgrade was denied. 14. The applicant provided: a.  A letter of recommendation from Sheriff M. B____, dated 13 November 2003, stating the applicant was employed at the Delta County Sheriff's Office, Cooper, TX, as a jailer/dispatcher from 21 June 2000 to 22 July 2003. The letter further stated the applicant was prompt, professional, completed all tasks that were assigned, and demonstrated good work ethics with fellow employees. b. A letter of recommendation from Corporal L. N____, dated 16 November 2003, stating he had the pleasure of working with the applicant for 5 months, that the applicant is the epitome of professionalism, that he is of good character, he is punctual with tasks, and he is proficient in everything he does. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. b.  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.  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. d.  A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. The SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge in lieu of trial by court-martial. The SPD/RE Code Cross Reference Table stipulates that RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS. 3. 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 U.S. Army Reserve (USAR). Table 3-1 includes a list of the RE codes: * an 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 * an 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 * an RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification – they are ineligible for enlistment DISCUSSION: 1. The applicant's request for an upgrade of his character of service and correction of his RE code and narrative reason for separation were carefully considered. 2. The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are 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 the rights of the applicant were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. 3. Army Regulation 635-5-1 states Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10, will have the following SPD and narrative reason for separation shown on their DD Forms 214: "KFS" and "In Lieu of Trial by Court-Martial." 4. The evidence of record further confirms that his SPD and RE codes were assigned based on his discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. The appropriate SPD code and corresponding RE code associated with this type of discharge are KFS and RE-4. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2