ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  27 June 2019

	DOCKET NUMBER:  AR20170010519


APPLICANT REQUESTS:  

* an upgrade of his under other than honorable conditions discharge to general under honorable conditions
* an amendment to the (Separation Code Designator (SPD) and narrative reason to that which is applicable to the requested upgraded discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* Self-authored letter, dated 10 April 2017
* (4) DD Form 214 (Certificate of Release or Discharge from Active Duty) (1999, 2005, 2010, and 2016) 
* NGB Form 21 (Annex A – DD Form 4 (Enlistment/Reenlistment Agreement)) Army National Guard, dated 24 June 2002
* Awards and certificates (5)
* Service school academic evaluation reports (7)
* Certificate of training (6)
* Promotion to Sergeant First Class (SFC) order 151-722, dated 31 May 2013
* DA Form 705 (Army Physical Fitness Test Scores), dated 28 September 2016
* Joint Service Transcript (unofficial), dated 10 April 2017
* DA photo as SFC

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 sincerely requesting an upgrade of his discharge, based on grounds of ‘clemency’.  A review and consideration of the unjust or inequitable decision to discharge instead of seeking possible alternate resolve in accordance with Title 10, U.S. Code, section 972, 1141-1153, 1168, and 1173.  A bar to benefits review: the basis of an absence without leave (AWOL) from active duty for a continuous period of at least 180 days if such person was discharged under other than honorable conditions unless such person demonstrates to the satisfaction (per U.S.C.§ 5303).

	a.  By means of clemency, he requests the Board to waive the ‘three year’ statute, as the existence of a corrections board was only just discovered.  In addition to further consideration, he has given the U.S. military 16 years of creditable service, since the discharge was processed.

	b.  In a self-authored statement, in effect, he sincerely requests the review and consideration of upgrading the 'character of service' upon his DD Form 214 (year 1999) as deemed appropriate.  Towards the end of his first three years in the Army (late 1998), he was experiencing marital issues that was affecting his attitude and decisions.  His wife at the time, did not want to be a part of the military life.  He found himself in a state of confusion, negative influence, depression, and even leading to a failed attempt to suicide in November 1998.  His troubles led him to go AWOL in order to try and save his marriage.  After approximately 60 days he turned himself into the military police afterwards he was discharged.

	c.  After September 11 , 2001 , he began knocking on a recruiter's door begging to re-enlist.  He then contacted the first Kansas National Guard unit that was set to deploy and was able to join them for a trip to Iraq (December 2003-February 2005).  Since rejoining the military, he has developed as a Soldier, become a leader and continuously developing as such.  He has expanded his qualifications and military experience, and will continue to do so until he is no longer fit for duty.

	d.  At the time of AWOL, he failed to see the long term effects of that decision.  As he constructed this request, with: multiple obtained MOS (military occupational specialty); three deployments; numerous certifications; achieving the rank of SFC/E-7; advancing his career as a field artillery warrant officer; and a commitment to many more years to continue his service, he humbly ask the Board to agree that the debt of his mistake has been paid, and to consider this small request of his.  He has made mistakes, and he has learned from them.

3.  The applicant provides:

	a.  Self-authored letter, dated 10 April 2017, addressed above.

	b.  (4) DD Form 214s (Certificate of Release or Discharge from Active Duty) (1999) which shows:

* he was discharged on 26 July 1999 under other than honorable conditions under the provisions (UP) of chapter 10 (Discharge for the Good of the Service) of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel)
* he was released from active duty honorably on 8 March 2005, after deployment in support of Operation Iraqi Freedom from 26 January 2004 until 6 February 2005
* he was released from active duty honorably on 25 August 2010, after serving in a designated imminent danger area with service in Egypt in support of Operation Enduring Freedom from 3 September 2009 until 9 July 2010
* he was released from active duty for training honorably on 8 October 2016, for completion of required active service

	c.  Several service documents including NGB Form 21 (Annex A – DD Form 4 (Enlistment/Reenlistment Agreement)) Army National Guard, dated 24 June 2002 which shows with prior military service he enlisted in the Army National Guard (state is unavailable).  Awards and certificates one of which was The Honorable Order of Saint Barbara.  Service schools including the Reserve Component Warrant Officer Candidate School.  Promotion order 151-722, dated 31 May 2013 to SFC on 22 April 2013.  Also his unofficial joint services transcript, dated 10 April 2017.

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

	a.  He enlisted in the Regular Army on 9 February 1996.

	b.  On 16 February 1999, DD Form 458 (Charge Sheet), shows court-martial charges were preferred against him for one specification of absent without leave from 11 December 1998 until 16 February 1999.

	c.  On 18 February 1999, he consulted with counsel and was advised of the contemplated trial by court-martial for an offense punishable by a bad conduct or a dishonorable discharge.  Subsequent to that, he requested discharge under the provisions (UP) of chapter 10, (for the good of the service – in lieu of trial by court-martial) Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel).  He also acknowledged the following:

* he understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate 
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State law
* understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

	d.  On 29 June 1999, his immediate commander recommended discharge under the provisions of chapter 10 of AR 635-200 and issuance of a discharge under other than honorable conditions.

	e.  On 12 July 1999, the separation authority approved discharge in lieu of trial by courts-martial.  He directed the applicant be furnished an under other than honorable conditions discharge and reduced to private/E-1.

	h.  On 26 July 1999, he was discharged under the provisions of AR 635-200, 
chapter 10, with an under other than honorable conditions character of service in the rank of private/E-1.  He served 3 years, 3 months, and 11 days.  He was assigned Separation Code KFS. (The Separation Code is not very legible, however the narrative for separation appears to be in lieu of trial by court-martial).  

5.  The applicant is currently still serving with the Kansas Army National Guard in the rank of chief warrant officer two/CW2.  

6.  By regulation, AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

7.  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.

8.  By regulation (AR 635-5-1) Enlisted Soldiers separating voluntarily under chapter 10 of AR 635-200 are assigned the Separation Code KFS and the narrative reason for separation "In Lieu of Trial by Court-Martial." 


BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was warranted.  Based upon the applicant’s record showing a pattern of honorable service prior to a one time AWOL offense which resulted in his separation, the Board concluded that the characterization of service should be upgraded to Under Honorable Conditions (General).  

However, the Board also concluded that the separation code and narrative reason currently depicted on the applicant’s DD Form 214 accurately reflects the facts and circumstances concerning the discharge and does not warrant a change.

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 reissuing the applicant a DD Form 214 showing his characterization 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 changing the separation code and/or the narrative reason for separation.
	 
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.  AR 635-5-1 (Separation Program Designator (SPD) Codes) provides 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.  SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 10, in-lieu of trial by court-martial.

3.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  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.

	a.  Paragraph 3-7a(1) states an honorable discharge is a separation with honor.  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.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b(1) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

4.  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.  These factors include the severity of the misconduct and the length of time since the misconduct.

ABCMR Record of Proceedings (cont)	 AR20170010519


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