ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  29 April 2019

	DOCKET NUMBER:  AR20160013064


APPLICANT REQUESTS:  an upgrade of his under other than honorable conditions (UOTHC) discharge and a change to his reentry (RE) code.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored statement

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he would like to reenlist in the U.S. Army, but he needs to have his characterization of service upgraded and RE code changed.  He believes he should receive a second chance.

2.  The applicant has prior service in the Regular Army (RA) from 8 January 1999 to 26 February 1999, from which he received an uncharacterized discharge due to failing to meet procurement medical fitness standards.

3.  On 18 May 2000, the applicant enlisted in the RA.

4.  A DD Form 4187 shows that on 4 January 2001, the applicant was in an absent without leave (AWOL) status, until he surrendered to military authorities on 14 August 2001.

5.  On 16 August 2001, court-martial charges were preferred against the applicant for being absent, without authority, from his organization from 4 January 2001 to 14 August 2001. 

6.  On 17 August 2001, the applicant, after consulting with legal counsel, voluntarily requested discharge in lieu of a trial by court-martial.  

     a.  His counsel advised him of the:

* basis for the contemplated trial by court-martial
* nature of his rights under the Uniform Code of Military Justice (UCMJ) 
* elements of the offense with which he was charged and any relevant less included offenses
* facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.

     b.  The applicant made the following acknowledgements in his request for discharge:

* he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person
* he was guilty of the charges against him or of lesser included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* if the discharge request was approved, he could be discharged UOTHC
* he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the Veterans Administration and 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 an UOTHC discharge.  
* he may submit any statement he desires in his own behalf, which would accompany his request for discharge.  
* he elected not to submit statements in his own behalf.

7.  On 13 February 2002, the commander recommended approval of the applicant’s request for discharge in lieu of a trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He stated, "Solder has become disillusioned with the military.  Retention of this individual is not in the best interest of the Army."  He recommended the applicant receive an UOTHC discharge.  

8.  On 19 February 2002, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with issuance of a UOTHC discharge and that he be reduced to private/E-1.

9.  Orders 074-0148, dated 15 March 2002, shows the applicant was reassigned to the U.S. Army transition point for discharge processing, with an effective date of 18 March 2002.
10.  On 18 March 2002, the applicant was discharged accordingly.  His DD Form 214 shows:

* item 12c (Net Active Service This Period) – "0001 02 19"
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon
* item 24 (Character of Service) – "Under Other Than Honorable Conditions"
* item 25 (Separation Authority) – "AR 635-200, Chap 10"
* item 26 (Separation Code) – "KFS"
* item 27 (RE Code) – "4"
* item 28 (Narrative Reason for Separation) – "In Lieu of Trial by Court-Martial"  
* item 29 (Dates of Time Lost During This Period) – "20011004 – 20010813"

11.  There is no record that the applicant applied to the Army Discharge Review Board within the Board’s 15-year statute of limitations.  

12.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), Table 
C-1 stated that SPD Code "FKS" is the proper code for enlisted Soldiers discharged in lieu for trial by court martial, under the provisions of Army Regulation 635-200.

14.  The SPD/RE Code Cross Reference Table stated that an SPD code of "KFS" receives an RE Code 4.

15.  The Under Secretary of Defense for Personnel and Readiness memorandum, dated 25 July 2018, issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  This guidance allows the Board to change the severity of the discharge when clemency is determined to be appropriate.  In making this determination, the Board should consider the applicant’s service record and his statement in accordance with the published equity, injustice, or clemency determination, in light of the published Department of Defense guidance.  

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The board applied Office of the Secretary of Defense standards of liberal consideration to the complete evidentiary record, including the applicant’s statement, however, in addition to the applicant’s misconduct, the record indicates that the applicant was disillusioned with Army service after five months of service. There is nothing in the record to suggest that the applicant would now be able to conform and fit into military life. Therefore, the Board did not find any evidence of error, injustice, or inequity; the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct.
 

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

: x	:x	:x	DENY APPLICATION


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.

	 
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.


ADMINISTRATIVE NOTE(S):

Not Applicable



REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation 635-200 (Personnel Separations), Chapter 10, provided 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 UOTHC discharge 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.

	c.  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.

3.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, states in Table C-1, that SPD Code "FKS" is the proper code for enlisted Soldiers discharged in lieu for trial by court martial, under the provisions of Army Regulation 635-200.

4.  The SPD/RE Code Cross Reference Table states that when the SPD code is "KFS" then RE Code 4 will be given.

5.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard and includes a list of Armed Forces RE codes.  Table 3-1 lists the Army RE Codes:

	a.  RE-1 applies to persons completing an initial term of active service who are fully qualified when last separated.

	b.  RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable.

	c.  RE-4 applies to persons separated from last period of Service with a non-waivable disqualification.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.


ABCMR Record of Proceedings (cont)	 AR20160013064
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