ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20170004384 APPLICANT REQUESTS: upgrade of his under other than honorable discharge and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: Online DD Form 293 (Application for the Review of Discharge). 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 (ABCMR) 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 wants to upgrade his discharge from under other than honorable conditions to honorable. 3. The record is void of the complete application document submitted by the applicant. 4. A review of the applicant’s service record shows: a. He enlisted in the Army on 22 May 1998. b. According to his DD Form 458 (Charge Sheet), dated 18 July 2001 court- martial charges were preferred against him for one specification of being AWOL from 11 June 2001 until 13 July 2001. c. On 18 July 2001, he consulted with legal counsel who advised him of the contemplated trial by court-martial and the maximum permissible punishment authorized under UCMJ and the possible effects of a bad conduct or dishonorable discharge, if the request is approved and the procedures and rights available to him. d. Following consultation with counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. In his request for discharge, he indicated: * he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person * he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions * he acknowledged he understood if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration * he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he elected to submit a statement on his own behalf e. His record is void of his chain of command’s recommendations and the separation authority’s approval; however, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 22 February 2002, in lieu of trial by court martial with a characterization of service of under other than honorable conditions. He completed 3 years, 7 months and 29 days of net active service, with lost time from 11 June 2001 to 12 July 2001. f. On 7 February 2002, the commander recommended discharge under other than honorable conditions. g. The separation authority approved his request for discharge. His DD Form 214 shows he was discharged on 22 February 2002, in lieu of trial by court martial with a characterization of service of under other than honorable conditions. He completed 3 years, 7 months and 29 days of net active service, with lost time from 11 June 2001 to 12 July 2001. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. AR 635-5-1, prescribes that the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. By regulation AR 635-5 (Separation Documents), the DD Form 214 will be annotated for item 27 (Reenlistment Code) IAW AR 601–210 (Regular Army and Army Reserve Enlistment Program). Soldiers separating under chapter 10 of AR 635-200 due to good of the service, in lieu of court martial are assigned the separation code of KFS. The RE code associated with this type of discharge is RE-3. BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found partial that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found that relief was warranted. The Board found the punishment and characterization of service given at the time of separation too harsh after serving 3 years of active duty time for being AWOL for 31 days. As a result, the Board recommended upgrading the characterization of service to Under Honorable Conditions (General). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X: X: X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re- issuing the applicant's DD Form 214 for the period ending 22 February 2002 to show character of service as Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of service to Honorable. 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. 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 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 635-5-1 (Separation Program Designators SPD) states that SPD’s are used to provide statistical accounting of the reasons for which active Army personnel are separated. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. The DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. Block 27 (Reenlistment (RE) Code), for the RE Code, AR 601–210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army and U.S. Army Reserves reentry eligibility and provides regulatory guidance on the RE codes. 4. Army Regulation 601-210 (Regular Army (RA) and Reserve Components Enlistment Program) in effect at the time, covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States (U.S.) Army Reserve. Table 3-1 lists the RA RE eligibility codes: a. 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. b. RE-2 is no longer used. c. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waiveable. They are ineligible unless a waiver is granted. d. RE-4 applies to Soldiers separated from last period of service with a nonwaivable disqualification. 5. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and the corresponding RE code. The cross reference table in effect at the time of his discharge states that separation code KFS has a corresponding RE code of "3." 6. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provided that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. b. Paragraph 3-7b (General) provided 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty. c. Chapter 10 of that regulation provided, in pertinent part, that a soldier who has committed an offense or offenses, the punishment for which, under the UCMJ and the manual court-martial (MCM), 1984, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service. The provisions of RCM 1003(d), MCM 1984, do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial-authorized to adjudge a punitive discharge. The discharge request may be submitted after court- martial charges are preferred against the soldier, or, where required, after referral, until final action by the court-martial convening authority. 7. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires 8. 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 based on 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. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170004384 7 1