ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170019493 APPLICANT REQUESTS: upgrade his under other than honorable conditions discharge to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR 20130005750 on 26 March 2013. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 28 January 2005. b. DA Form 458 (Charge Sheet), dated 1 August 2007, reflects the applicant was being charged for without authority and with intent to remain away from permanently absent from his unit. c. DA Form 458 (Charge Sheet), dated 27 October 2008, which indicates that the applicant was charged with desertion, in that on 1 August 2007, without authority and with the intent to remain away permanently, absented himself from his unit and remained so absent in desertion until 30 June 2008, and failing to report to his appointed place of duty. d. On 21 November 2008, the applicant consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), 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. The separation authority approved the applicant's request for discharge on 21 November 2008, under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. He completed 02 years, 11 months, and 13 days of active service. The DD Form 214 also shows in. * Items 4a (Grade, Rate or rank) and 4b (Pay Grade) show PVT/E-1 * Item 12h (Effective Date of Pay Grade) - 21 November 2008 * Item 26 (Separation Code) - KFS * Item 27 (Reentry Code) - 4 * Item 28 (Narrative Reason for Separation) - In Lieu of Trial by Court-Martial 4. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 26 March 2013. The ADRB determined after examining the applicant’s record of service and the documents submitted with the application, there are insufficient mitigating factors to merit an upgrade of the applicant’s discharge. 5. By regulation, a member who has committed an offense 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. Soldiers separated under Army Regulation (AR) 635-200, paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS. The RE Code associated with this Separation Code is RE-4. b. 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." 6. AR 635-5 (Separation Documents), paragraph 2-4g (28), provides that the narrative reason for separation is based on regulatory or other authority and can be checked against the cross reference in AR 635-5-1 (Separation Program Designators). 7. The Board should consider the applicant's submissions 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 lengthy AWOL offense while serving in a deployment operation, as well as a lack of character evidence submitted by the applicant to show he has learned and grown from the events leading to his discharge, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. AR 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, 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 635-5, Chapter 2, provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. A DD Form 214 will be prepared for active Army Soldiers on termination of active duty by reason of administrative separation (including separation by reason of retirement or expiration term of service (ETS)), physical disability separation, or punitive discharge under the Uniform Code of Military Justice. ABCMR Record of Proceedings (cont) AR20170019493 3 1