ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  28 June 2019

	DOCKET NUMBER:  AR20170007903


APPLICANT REQUESTS: 

* an upgrade of his character of service from under other than honorable conditions discharge to an honorable
* a change in reason for discharge to “Convenience of the Government” on his DD Form 214 (Report of Separation from Active Duty)
* a reenlistment (RE) code to RE-1 and corresponding Separation Program Number/Designator (SPD)

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Report of Separation from Active Duty)
* Self-Authored Statement
* Supporting Documents

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 was very young when he enlisted in the Army in 1973 and his ability to serve was impaired by his youth and immaturity.  He has been a good citizen since he discharged from service and he did not fully understand how this type of discharge would impact the rest of his life according to the applicant.  He has worked all of his life and raised his son as a single dad, never has been in trouble with the law.  

3.  The applicant provides:

	a.  A statement of support dated 10 December 2016 from A.D. that states he is the applicant's son and he is asking the Board to reconsider his dad’s request for an upgrade of his military discharge.  His dad has admitted to him time over time again that his decision to leave the military in the manner the way that he did was not a good choice but, he was age 17, young and impressionable.  His dad has been a good upstanding person, hardworking and he has he raised him by himself and to have good morals.  He lives by good morals that he claims has been instilled in him from the Army, he is very responsible, honest, dependable, reliable, and he knows that he can count on his dad according to A.D.  

	b.  Two statements of support dated 19 February 2017, from X and X state that they both have known the applicant for a lifetime and he has always shown strong traits such as reliability, consistency and dependability.  He is hard working, kind and will help people that cannot help themselves.

	c.  Supporting documents that consist of copies of the birth certificates to show the relationship of proof of character statements and a copy of his background check to show that he has no criminal issues.

4.  A review of the applicant’s service records shows:

	a.  He enlisted in the Regular Army on 1 November 1973.

	b.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 16 April 1974 to 13 June 1974 and dropped from the Army rolls as a deserter on 17 May 1974.  

	c.  On 19 June 1974, court-martial charges were preferred against him.  His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being AWOL bout 16 April 1974 to 13 June 1974.  
	d.  On 24 June 1974, counsel advised applicant of the basis for his contemplated trial by court martial, the effects of an undesirable discharge and his election of rights.  After consulting with legal counsel, he requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  He acknowledged:
* maximum punishment
* he was guilty of a charge against him or of a lesser included offense
* he does not desire further rehabilitation or further military service
* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he would be deprived of many or all Army benefits, he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life

	e.  On 15 July 1974, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service.  He would be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted pay grade.

	f.  On 9 August 1974, he was discharged from active duty with an under other than honorable conditions characterization of service.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions characterization of service.  He would have been assigned Separation Code KFS (or JFS) and he completed 7 months and 6 days of active service with 59 days lost time.  It also shows he was awarded or authorized:

* National Defense Service Medal
* Parachutist Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

5.  On 11 Mar 1980, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge and, his request was denied.  

6.  By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

7.  By regulation, AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation code to be entered on the DD Form 214.  Separation Code KFS (or JFS) applies to Soldiers separating under the provisions of chapter 10 of AR 633-200.  The RE Code associated with this type of discharge is RE-4.

8.  In reaching its determination, the Board can consider the applicant’s petition and his service record 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 honorable service completed prior to a lengthy AWOL offense, the Board concluded that the characterization of service received at the time of discharge was appropriate.


Additionally, the Board also concluded that the narrative reason and the RE code currently depicted on the applicant’s DD Form 214 accurately depict the facts and circumstances surrounding the applicant’s separation.  Therefore, the Board determined there was insufficient evidence of an error or injustice which would warrant making a change to one of the requested categories.

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.

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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service.

3.  AR 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation code to be entered on the DD Form 214.  It identifies SPD code "KFS (JFS)" as the appropriate separation code to assign enlisted Soldiers who are discharged for the good of the service-in lieu of court martial.  It identifies SPD code "KFS (JFS)" as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of AR 635-200, chapter 10.  Separation Code KFS has a corresponding RE Code of 4.

4.  AR 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve.  Table 3-1 included a list of the RA RE codes.  RE codes are numbered 1, 3, and 4.

* 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
* RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable; those individuals are ineligible unless a waiver is granted
* RE-4 applies to Soldiers ineligible for reentry

5.  AR 635-5 (Separation Documents) states a DD Form 214 will be prepared for a Soldier on termination of active duty by reason of administrative separation.

* item 25, obtain the correct entry from regulatory or directives authorizing the separation
* item 26, obtain the correct entry from AR 635-5-1 (SPD Codes)
* item 27, AR 601-210 (Regular Army and Reserve Components Enlistment Program) determines Regular Army and U.S. Army Reserve reentry eligibility
* item 28, based on regulatory or other authority and can be checked against the cross reference table in AR 635-5-1

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  

ABCMR Record of Proceedings (cont)	 AR20170007903


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