ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 May 2019 DOCKET NUMBER: AR20180016553 APPLICANT REQUESTS: * under other than honorable conditions (UOTHC) discharge be upgraded to general * reentry eligibility (RE) code be changed from RE-3 to RE1 * separation (SPD) code be changed * National Defense Service Medal (NDSM) and Army Service Ribbon (ASR) upgrade APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Discharge from Active Duty) 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 request an upgrade because he served 497 days with only 1 incident. 3. On 25 November 1992, the applicant enlisted in the Regular Army for 3 years. He completed both Basic and Advanced Individual training and was awarded the MOS of 77F (Petroleum Supply Specialist). His highest rank obtained was Private First Class PFC/E3 on 1 September 1993. 4. On 6 October 1993, the applicant was barred from reenlistment. The commander noted that the applicant “was caught for drinking and driving and causing an accident”. Of note, there is no additional data in the applicant’s records in reference to this misconduct. 5. On 4 October 1994, the applicant was charged with being absent without leave (AWOL) from 11 February 1994 through 4 October 1994 (235 days). 6. On 6 October 1994, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with legal counsel and was advised of the basis for the trial by court-martial, his available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. He acknowledged he could be ineligible for many or all Army and/or Veterans Affairs Benefits. He signed a request for discharge, waived his medical examination and indicated he would not submit statements in his own behalf. 7. On 4 November 1994, the appropriate separation authority approved the applicant's request directing the applicant be discharged and furnished an UOTHC discharge certificate. 8. On 27 November 1994, he was discharged accordingly. He completed 1 year, 4 months, and 12 days of net active service. His awards and decorations are the Army Service Ribbon, National Defense Service Medal, and marksman M-16 rifle. 9. On 23 December 1996, the applicant requested a character and discharge upgrade to the Army Discharge Review Board (ADRB). The board determined that the applicant was properly and equitably discharged. As a result, his request was denied. 10. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 11. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides the eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and USAR. It provides that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 includes a list of Regular Army RE codes. a. RE code "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 code "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. c. RE code "4" applies to Soldiers separated from their last period of service with a non-waivable disqualification. 12. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides that SPD codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. SPD code narrative reasons are aligned with applicable regulatory authority paragraphs. The SPD code of "KFS" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, by narrative reason of voluntary discharge in lieu of trial by court-martial. 13. The SPD/RE Code Cross Reference Table provides instructions for determining the applicable RE code for separating Regular Army and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The table in effect at the time of the applicant's discharge shows that SPD code "KFS" was assigned a corresponding RE code of "3." 14. AR 600-8-22, chapter 2 and chapter 5, governs the authorization of wear of the National Defense Service Medal and the Army Service ribbon respectfully. Chapter 2 states: a. The NDSM was established by EO 10448, 22 April 1953, as amended by EO 11265, 11 January 1966; EO 12776, 18 October 1991, as amended by EO 13293, 28 March 2003 and SECDEF Memorandum, dated 26 April 2002; and EO 13293, dated 28 March 2003. The NDSM may be awarded for both active and reserve service as defined below. b. It is awarded for honorable active service for any period between (dates inclusive): * 27 June 1950 and 27 July 1954 (Korea). * 1 January 1961 and 14 August 1974 (Vietnam). * 2 August 1990 and 30 November 1995 (Persian Gulf). * 11 September 2001 to a date to be determined (Global War on Terrorism). (Of note, the applicant was discharged on 27 November 1994, and his DD214 shows the authorization of the NDSM). c. The Army Service Ribbon (ASR) was established by the SECARMY on 10 April 1981 as announced in Army General Order 1990–15. It is awarded to Soldiers of the U.S. Army for successful completion of initial entry training. d. Effective 1 August 1981, all members of the Regular Army, ARNG, and USAR in an active Reserve status are eligible for this award. The ribbon may be awarded retroactively to those personnel who completed the required training before 1 August 1981 provided they had a Regular Army status as defined above on or after 1 August 1981. e. Chapter 5 states the ASR is authorized for wear upon completion of initial military training. This includes advanced individual training for enlisted Soldiers and branch- specific basic officer leadership course for commissioned officers. f. Only one award of the ASR is authorized, regardless of whether a Soldier completes both officer and enlisted initial entry training. (Of note, the applicant’s DD214 reflects the award of the ASR). 15. The applicant’s records shows that he was barred for reenlistment for drinking and driving and causing an accident. He subsequently went AWOL for 235 days, and requested a discharge in lieu of trial by court-martial. As a result, he was discharged with an UOTHC certificate. He completed 1 and 1/2 years of his contract. 16. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and insufficient evidence of mitigating circumstances for the serious misconduct. Neither did the Board find sufficient evidence of post-service honorable conduct that might have mitigated the discharge characterization. Furthermore, the applicant stated that there was only one incidence of misconduct, but the record reflects a bar to reenlistment for “drinking and driving and causing an accident” as well as the nearly nine month period of absent without leave. The Board agreed that the applicant’s discharge characterization is 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 600-8-22 prescribes the policies and procedures concerning U.S. Army awards to foreign military personnel and foreign decorations to U.S. Army personnel. 3. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions he was reduced to the lowest enlisted grade. Board action was not required for this reduction. 4. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) provides the eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and USAR. It provides that individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. Table 3-1 includes a list of Regular Army RE codes. a. RE code "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 code "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. c. RE code "4" applies to Soldiers separated from their last period of service with a non-waivable disqualification. 5. Army Regulation 635-5-1, in effect at the time, provided 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. It identified the SPD code of "KFS" as being associated with separations under the provisions of chapter 10, AR 635-200; the required narrative reason for separation was "in lieu of trial by court-martial." 6. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. A general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. An UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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 (BCM/NRs) regarding equity, injustice, or clemency 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. a. 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 on the basis of 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. b. 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. //NOTHING FOLLOWS//