ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170007888 APPLICANT REQUESTS: * upgrade his general under honorable conditions discharge to honorable * change the narrative reason for separation * change the reentry (RE) code * restoration of his grade APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, in effect, his current discharge prevents him from working for certain Police Departments or Sheriff Offices. Due to his newborn's medical issue in 2003, he could not fulfill his dream of becoming an Army officer. Since his discharge, he has been working as a law enforcement officer, has not been in any trouble, serves his community with honor and dignity, and has a family that he would like to be able to care for. In terms of evidence to support his request for an upgrade, he states that his son is dead, which is the only reason for him not fulfilling his obligation to the Army. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 29 April 2003. b. He was reported as absent without leave (AWOL) on 15 January 2004 and dropped from the rolls (DFR) on 14 February 2004. a. c. He surrendered to military authorities in Miami, FL on 26 April 2004; his duty status changed from DFR to Attached/Present for Duty. d. DA Form 458 (Charge Sheet), dated 29 April 2004, reflects the applicant was being charged for violating the Uniform Code of Military Justice (UCMJ) by being AWOL from 15 January 2004 to 26 April 2004. e. On 29 April 2004, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf; he did not submit any statements f. The separation authority approved the applicant's request for discharge on 13 May 2004, under the provisions of AR 635-200, chapter 10, in lieu of trial by court- martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. He completed 9 months and 9 days of active service and he had lost time from 15 January 2004 to 25 April 2004. The DD Form 214 also shows in: * Items 4a (Grade, Rate or rank) and 4b (Pay Grade) show PV1/E-1 * Item 12h (Effective Date of Pay Grade) - 13 May 2004 * Item 26 (Separation Code) - KFS * Item 27 (Reentry Code) - 4 * Item 28 (Narrative Reason for Separation) - In Lieu of Trial by Court-Martial 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 5 January 2006. The ADRB determined the characterization of service was too harsh; therefore, the ADRB voted to upgrade it from under other than honorable conditions to general under honorable conditions. However, the ADRB 1. determined both the narrative reason for separation and the RE code were valid and voted not to change either. 5. By regulation, a member who has committed an offense 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 under other than honorable conditions is normally considered appropriate. a. Soldiers separated under AR 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS. The RE Code associated with this Separation Code is RE-4. b. Soldiers separated under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial are assigned the Narrative Reason for Separation as "In Lieu of Trial by Court-Martial." c. When a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. 6. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. 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 determined that relief was not warranted. Based upon the short term of service prior to the lenthy AWOL offense, the Board concluded the characterization of service received at the time of discharge was appropriate. For that reason, the Board recommended denying the applicant’s request for relief. 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. 4/29/2019 X CHAIRPERSON Signed by: 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 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 - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions is normally considered appropriate. 3. Army Regulation 635--5-1 (Separation Program Designator (SPD) Codes), Table 2-3 (Separation program designator codes applicable to enlisted personnel), provides that a member who is discharged under the provision of AR 635-200, chapter 10, in lieu of trial by court martial will be assigned the Separation Code KFS. This Separation Code has a corresponding RE Code of 4. 4. 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. Table 3-1 included a list of the RA RE 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. a. b. 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. c. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. 5. The under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge review Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.