ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 16 October 2019 DOCKET NUMBER: AR20170012834 APPLICANT REQUESTS: * change his Reentry (RE) Code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) * upgrade of discharge from under other than honorable to general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214, period ending 20 May 2011 * Document from Veterans’ Counselor, dated 3 August 2017 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, in effect: a. Regarding the RE Code change, he states he would like his RE Code to be changed so that he may re-enter military service. He states he believes he could make a difference if he had the opportunity b. Regarding the upgrade of his character of service, he states he has reliable transportation at this time. He explains he was home on leave from the military and he decided to get a job to help with income. He states his wife at the time received information regarding his travel to the next duty location. The applicant states his wife failed to inform him of his travel plans and he was waiting on notification to proceed. He states he started inquiring about his travel plans by contacting the Red Cross at Aberdeen Proving Ground. He states he went in person to Gunter Air Force Base (AFB) and Fort Rucker, AL, but all said they did not have any information on him. The applicant states he went back to work to support his family because everyone at the military bases did not seem to care regarding his status at the time. Lastly, he adds, shortly after inquiring with the military post, he states he meet a retired military officer who assisted him with his situation and encouraged him to turn himself in to the appropriate authorities once he found out were to go. He states he enjoyed the military and would like a chance to renter. He asks the Board to please upgrade his discharge and change his RE Code so that he may do so. 3. The applicant provides: a. A copy of his DD Form 214, showing he was discharged with an under other than honorable conditions character of service and his RE Code is listed as a “4” b. A brief memorandum from his Veterans counselor, dated 3 August 2017, referencing his the applicant’s supporting documents to be considered by the Board (DD Form 149, DD Form 293, and DD Form 214). The counselor asks the Board, on behalf of the applicant, to please take appropriate action. 4. A review of the applicant’s service record shows: a. He enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program on 20 December 2007. He enlisted in the Regular Army on 12 February 2008 according to Section III (Service Data) of his Enlisted Record Brief. b. On 14 February 2011, DD Form 458 (Charge Sheet), shows court martial charges were preferred against the applicant for one specification of absenting himself from his unit, without authority, on or about 30 July 2008 and remained absent until 9 February 2011 c. On 14 February 2011, the applicant 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 AR 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, (for the good of the service – in lieu of trial by court-martial). 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 15 February 2011, 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. His commander stated the applicant’s conduct rendered him subjet to trial by courts-martial under circumstances which could lead to a bad conduct or dishonorable discharge. The applicant’s commander recommended him for an under other than honorable conditions discharge. e. On 5 May 2011, the separation authority (by delegated authority on appointment memorandum, dated 4 June 2010, by the command’s commanding general) approved the applicant’s 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. f. Orders 133-0165, dated 13 May 2011, issued by Headquarters, U.S. Army Garrison Command, Fort Knox, KY, reassigned the applicant to the U.S. Army Transition Point for transition processing effective 20 May 2011. g. On 20 May 2011, the applicant was discharged, in the rank of private/E-1. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10, with the narrative reason for separation as “In Lieu of Trial by Court-Martial. The applicant received an under other than honorable conditions character of service. He served 8 months and 29 days of creditable active service with lost time from 30 July 2008 to 9 February 2011. His DD Form 214 also shows in Item 26 (Separation Code), the applicant was assigned the code “KFS.” Item 27 (Reentry Code), shows the applicant was assigned a RE Code of “4.” 5. By regulation (AR 601-210), Table 3-1 included a list of the Regular Army RE codes: * 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 time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment. 6. The Separation Program Designator (SPD)/RE Code Cross Reference Table in effect at the time of his discharge provides instructions for determining the RE Code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE Code. The SPD Code "KFS" has a corresponding RE Code "4." 7. 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. 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 review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a lengthy period of AWOL, the Board agreed that the applicant's discharge characterization and reentry code was warranted as a result of the misconduct. 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 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. 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 provides 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 provides 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. 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. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army RE codes: * 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 time of separation, but disqualification is waivable; they are ineligible for enlistment unless a waiver is granted * RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment 4. The SPD/RE Code Cross Reference Table in effect at the time of his discharge provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code "KFS" has a corresponding RE code "4." 5. 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) AR20170012834 5 1