ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170016998 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge to honorable * a change in reason for discharge to convenience of the government * an upgrade of his Reentry (RE) Code from RE-3B to RE-1 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) * National Guard Bureau (NGB) Form 22 * 1 page of Chain of Command Separation recommendation * 6 Support Letters * 3 Birth Certificates * Burke County North Carolina, Criminal Records Search 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 is asking for upgrade of his character of discharge on his DD Form 214 to honorable, a change in reason for discharge to convenience of the government, reenlistment code change to RE-1 and corresponding separation program number/designator. He was having extreme financial hardship at the time he received his discharge. He was very young when he enlisted in the Army in 1978, 18 years old. He was married at the age of 16 years old with two children His ability to serve was impaired by his youth and immaturity. He was trying to support his family and financially struggling. His wife and children were living in a car at the time and he had a mental break down and it lead to the discharge he received. He did not fully understand the papers he was signing and he did not understand how the type of discharge would affect him for the rest of his life. He has been a good citizen since his discharge. 1. 3. The applicant provided 6 character statements from family, friends and business associates. The statements showed the applicant as a good father, husband, provider and business associate. The statements also pointed out the applicant’s failing health and how much Veterans Administration (VA) benefits would assist in his health care. a. Support letter from Ms. X____, applicant’s daughter. She states the applicant has always provided for her and, other siblings. He now has health issues and needs continuous health care. The applicant would benefit greatly from Veterans Administration (VA) health care. She states the health care issues are a growing concern and hardship for the applicant. b. Support letter from Ms. X____, applicant’s wife. She states she and the applicant have been married for 41 years. They have three children, ten grandchildren and three great-grandchildren. The applicant is a good provider for the family. The applicant is in need of health care, has many medical problems and requires continuous physician care. She states that having VA benefits would relieve the family of worry and burdens. The applicant is no longer able to work and the wife is the lone provider for the family. c. Support letter from Ms. X____, daughter of applicant. She states the applicant has always provided for his family. He has many health issues and should have ongoing medical care. The applicant need help and services from the VA. d. Support letter from Ms. X____, daughter of applicant. She states she has lived in the applicant’s household all of her life. He has always been a great dad and provider. He has needs a lot of medical attention that she believes the VA can provide for the applicant. The applicant’s prescription medication is too expensive for the applicant to manage on his budget. e. Support letter from Mr. X____, business associate/retired police officer. He states he has known the applicant for over 30 years. He has had business dealing and work dealings with the applicant. He considers himself a friend to the applicant. The applicant is a good man and has always taken care of his family. f. Support letter from Mr. X____, friend of applicant. He states he has been a friend of the applicant for many years. The applicant has been a friend to law enforcement and a fixture in his community. The applicant is a person of good reputation and solid character 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 2 November 1978. a. b. Court-martial charges were preferred against him on 19 February 1980. His DD Form 458 (Charge Sheet) indicates he was charged with one specification of being absent without authority from 8 January 1979 to 14 February 1980. c. Subsequent to legal counsel, the applicant requested discharge under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). He acknowledged: * maximum punishment * he was guilty of the charge against him of a lesser included offense therein contained which also authorizes the imposition of a bad conduct discharge or dishonorable discharge * he did not desire further rehabilitation or a desire to perform further military service * he understood if his discharge was accepted he could be separated with an under than honorable conditions discharge and furnished an Undesirable Discharge Certificate * he would be deprived of many or all Army benefits and that he may be ineligible for benefits by the VA and benefits of a Veteran under Federal and State law * in his request for discharge, he elected not to submit a statement d. Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s request for discharge under the provisions of chapter 10, AR 635-200 on 17 March 1980. He ordered him reduced to the lowest enlisted grade and issued an under other than honorable conditions characterization of service. e. He was discharged from active duty on 25 March 1980. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 10 of AR 635-200 and issued an under other than honorable condition characterization of service. He completed 3 months and 18 days of active duty, with 402 days of lost time. It also shows he was awarded or authorized: Expert Marksmanship Qualification Badge with Rifle Bar. It further shows in: * Item 26 (Separation Code) contains the entry KFS * Item 27 (Reenlistment Code) contains the entry 3B * Item 28 (Narrative Reason for Separation) contains the entry "For the Good of the Service - In Lieu of Court-Martial." 5. By regulation (AR 635-200), a member who has committed an offense or offenses, the punishment for any of which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service 1. 6. By regulation (AR 635-200), Soldiers separated under chapter 10 of AR 635-200 are assigned the narrative reason for separation “Conduct Triable by Court-Martial.” 7. By regulation (AR 635-5-1), the Separation Code of KFS is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. The RE Code associated with this Separation Code is 3. RE-3B applies to those with lost time. 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 there is insufficient evidence to grant relief. The applicant’s contentions and letters of support 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 evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization, reason for separation, and reentry code were 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. 5/31/2019 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 (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 3-7a (Honorable Discharge) states that 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. b. Paragraph 3-7b (General discharge) states 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 that a member who has committed an offense or offenses, the punishment for any which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable discharge is normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment. a. 3. AR 635-200, Chapter 5, (Separation for the Convenience of the Government), sets forth the conditions under which enlisted personnel may be discharged, released from active duty or active duty for training, for the convenience of the Government with service characterized as honorable or under honorable conditions, as appropriate. The categories for which separation is authorized are: * order to active duty or active duty for training as a commissioned or warrant officer * discharge of aliens not lawfully admitted to the United States * discharge of members of reserve components on active duty * separation of personnel who did not meet procurement medical fitness standards * discharge for failure after enlistment to qualify medically for flight training * failure to complete Army Officer Candidate School 4. AR 601-210 (RA and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and 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-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 unless a waiver is granted. 5. 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 code to be entered on the DD Form 214. It identifies SPD code JFS as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10: Administrative discharge, conduct triable by court-martial. 6. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established RE code 3 as the proper RE code to assign to Soldiers separated with SPD code JFS. 7.. 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. //NOTHING FOLLOWS//