ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20170019007 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions discharge * review and consideration for modification of separation and reenlistment codes * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 that he is remorseful for his wrong doing. His actions derived from his ignorance, mental status, and negative reactions to others with higher rank. He deployed with 5th Battalion, 16th Infantry, 3rd platoon under Staff Sergeant (SSG) X and it was not a productive assignment for him because of constant hazing, racist remarks and physical abuse. He was assigned to unethical duties like cutting grass with scissors. He was despised and ridiculed because his father was a lieutenant colonel and multiple times he asked for help but was ignored. His medical records have been destroyed which he is not able to collect. Being diagnosed with medical challenges and the belief this was a medical discharge back in 1988, he can provide character witnesses, career successes, which were achieved after medical treatment. 3. A review of the applicant’s service record shows the following: a. He enlisted in the Regular Army on 30 September 1987. b. A DD Form 458 (Charge Sheet) is not available for review with this case. However, his service record contains a request for voluntary discharge in lieu of trial by court-martial. a. c. On 30 September 1988, he requested discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for specifications of being absent without leave (AWOL) and missing movement. c. He was informed of his rights to legal counsel and he consulted with legal counsel. He consulted with counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. d. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of AR 635-200, 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 e. During September 1988, his chain of command recommended approval that he be discharged under other than honorable conditions. f. On 11 October 1988, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10, for the good of the service and directed that he be reduced to the lowest enlisted grade furnished an undesirable discharge certificate. g. On 11 October 1988, the 1st Infantry Division (Mechanized) and Fort Riley by memorandum to the applicant ordered him not to reenter or be found within the limits of the United States Military Reservation at Fort Riley, KS. h. The applicant was discharged on 20 October 1988. His DD Form 214 shows he was discharged under the provisions of AR 635-200, chapter 10 with an under other than honorable conditions characterization of service. He completed 1 year, and 19 days of active service, and he had lost time from 31 August 1988 to 1 September 1988. His DD Form 214 also shows in: * Item 26 (Separation Code) - KFS * Item 27 (Reentry Code) - 3 * Item 28 (Narrative Reason for Separation) – for the good of the service -in lieu of trial by court-martial 4. By Army Regulation 635-200, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge 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 in accordance with AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)). b. The RE Code associated with this separation is RE-3B which applies to persons who have lost time during their last period of service; ineligible for enlistment unless a waiver is granted in accordance with AR 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8. c. 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." 5. By law and Army Regulation 635-200, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits. The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up. 6. 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 misconduct involving missing movement, and the applicant failing to provide mitigating factors for such conduct, the Board found insufficient justification to change the applicant’s record. 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. 5/13/2019 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 states 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 states 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 that a Soldier 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. The discharge request may be submitted after court-martial charges are preferred against the Soldier or where required, after referral, until final action by the court-martial convening authority. A discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged for the good of the service. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record during the current enlistment. 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 3. 4. Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army and the U.S. Army Reserve (USAR) for enlistment on or enlistment on or after the effective date of this regulation. 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 (BCM/NRs) regarding equity, injustice, or clemency 1. determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This 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 based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.