ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  22 February 2019

	DOCKET NUMBER:  AR20160013215


APPLICANT REQUESTS:  

* reconsideration of his earlier request to change the narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty), ending 7 March 2007
* as a new request, change the separation program designator (SPD) code to one that matches his previously upgraded character of service

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Record of Proceedings (ROP), Army Board for Correction of Military Records (ABCMR) Docket Number AR20100029922, dated 4 August 2011
* ROP, ABCMR Docket Number AR20150007552, dated 29 October 2015
* Army Review Boards Agency (ARBA) letter, dated 30 October 2015 with voided and corrected DD Forms 214 (Certificate of Release or Discharge from Active Duty), ending 7 March 2007
* Veterans' Center Letter, dated 22 December 2014
* Department of Veterans Affairs (VA) Disability Rating, dated 29 September 2009
* Office of Personnel Management letter, dated 6 October 2009
* VA and military medical records
* Emergency leave documents

FACTS:

1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AR20100029922 on 4 August 2011 and AR20150007552 on 29 October 2015.

2.  The applicant states, in signing his discharge request in lieu of court-martial, he was under physical and mental duress due to his combat missions, Red Cross issues, and multiple other physical and mental stressors.  The SPD and narrative reason for separation do not match his upgraded character of service (general discharge under honorable conditions).  In effect, this mismatch is in error and unjust.  As evidence, he provides his corrected DD Form 214 and the ABCMR Record of Proceedings.

3.  The applicant's service record shows:

	a.  On 5 June 1992, he enlisted in the Massachusetts Army National Guard and remained until his discharge on 15 September 2002; he transferred to the U.S. Army Reserve Control Group (Reinforcement).  On 27 February 2003, orders reassigned him to a Troop Program Unit (TPU).  On 23 August 2005, he was mobilized and ordered to active duty in support of Operation Iraqi Freedom. 

	b.  He deployed to Iraq on 10 November 2005; while deployed, his unit granted him leave to the continental United States, effective 21 March 2006.  His unit reported him absent without leave (AWOL) on 9 April 2006 and dropped him from Army rolls, effective 9 May 2006.  On 11 November 2006, he returned to military control and was reassigned to the Special Processing Company, Fort Knox, KY.

	c.  On 30 November 2006, his Special Processing Company commander preferred court-martial charges against him for AWOL from 9 April to 11 November 2006.  Also on 30 November 2006, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He affirmed he was advised of the charges against him, his available rights, and the basis for voluntarily requesting discharge.  He indicated he would not submit statement in his own behalf.

	d.  On 16 February 2007, the separation authority approved the applicant's request and directed his discharge under other than honorable conditions; he further directed reduction to the lowest enlisted grade.  On 7 March 2007, the applicant was discharged accordingly.  His DD Form 214 shows he was awarded or authorized the National Defense Service Medal (2nd Award), Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, and the Armed Forces Reserve Medal with "M" Device.  His SPD code was "KFS"; his narrative reason for separation was "In Lieu of Trial by Court-Martial."

4.  On 28 February 2009, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service to honorable.  On 23 August 2010, the ADRB denied his request.

5.  On 13 December 2010, the applicant petitioned the ABCMR requesting a change of his character of service to honorable, as well as a revision of the narrative reason for separation; the ABCMR denied his request.

6.  On 20 January 2015, he requested the Board's reconsideration of his request to upgrade his character of service, citing VA post-service disability ratings for multiple conditions, to include post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI).  The Board granted partial relief by upgrading his character of service to general under honorable conditions and restoring his rank/grade to specialist/E-4; the Board denied his request for an honorable discharge.  

7.  By regulation, the DD Form 214 lists the SPD codes and narrative reasons for separation based on the regulatory authority associated with the specific separation.  For separations under chapter 10, AR 635-200, the SPD is "KFS"; the required narrative reason for separation was "in lieu of trial by court-martial."

8.  In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief.  The applicant was granted relief with the characterization of service; however, his SPD code is congruent to the reason he was separated.



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 to amend the decision of the ABCMR set forth in Docket Numbers AR20100029922 on 4 August 2011 and AR20150007552 on 29 October 2015.

	 										___________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.



REFERENCES:

1.  AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of the DD Form 214.  It stated the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes).

2.  AR 635-5-1, in effect at the time, provided 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 identified the SPD code of "KFS" as being associated with separations under the provisions of chapter 10, AR 635-200; the required narrative reason for separation was "in lieu of trial by court-martial."

3.  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.  

      a.  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.  

      b.  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)	 AR20160013215


3


1