ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20180016715 APPLICANT REQUESTS: The applicant requests * upgrade of his under other than honorable conditions (UOTHC) discharge * correction of his DD Form 214 (Certificate of Release or discharge from Active Duty) to reflect: * he was promoted to specialist (SPC)/E-4 * award of two Army Achievement Medals * reentry (RE) code 1 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: The 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: a. He is an upstanding citizen with no troubles with the law. He has been an upstanding member of the communities he has lived in. He is currently a Federal Officer and has the Federal Law Enforcement Training Centers (FLETC) program in Glynco, GA. He was also promoted to specialist (SPC)/E-4. All the paperwork he has received only shows he only attained private first class (PFC)/E-3. He is also noting the two Army Achievement Medals he received are undocumented on his final paperwork. He has separately requested those orders and additions to his DD Form 214. b. Initially, he was discharged for not wanting to turn over evidence on two noncommissioned officers (NCOs) in his unit who were involved in illegal activities. He was originally processed out at Fort Hood, TX by the Judge Advocate General (JAG) Corps. He was given information that he could reenlist after six months and would have an RE code 1. His company commander did not sign the paperwork and he was eventually listed as absent without leave (AWOL). He was not even aware of this. He was working for a government contractor about six months later and was arrested by criminal investigation division (CID). He was sent to Fort Sill, OK to reprocess out. He was then given an UOTHC discharge and an RE code 3. c. He would like a general or honorable discharge. He was a naive kid at the time of these occurrences. He would like the opportunity to show he is a great person and Soldier. He received several awards while enlisted that are not listed on his DD Form 214. These orders would show his value as a Soldier. 3. On 11 July 1995, at the age of 17 years old, he enlisted in the Regular Army (RA) for a term of 4 years. The applicant completed one station unit training and on 22 November 1995, he was assigned to Fort Hood, TX. 4. His personnel qualification record shows the highest rank/grade held by the applicant was PFC/E-3 with a date of rank of 11 July 1996. The form also shows he was awarded or authorized: * Joint Meritorious Unit Award * National Defense Service Medal * Army Service Ribbon * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Marksman Qualification Badge 5. He served in Kuwait, an imminent danger pay area, from 1 September 1996 to 6 January 1997. In February 1997, he was reduced to private two/E-2. On 30 September 1997, the applicant went AWOL and on 30 October 1997, he was dropped from the unit rolls. On 30 January 1998, he surrendered and was returned to military control. 6. On 3 February 1998, court-martial charges were preferred against the applicant for one specification of being AWOL from 30 September 1997 and he remained absent until 30 January 1998, AWOL for a total of 122 days. 7. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 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 AR 635-200, chapter 10. The applicant elected not to submit a statement on his own behalf. 8. The applicant's immediate commander recommended approval of his request. The case was legally reviewed and on 15 April 1998, the appropriate separation authority approved the applicant's request directing the applicant be reduced to rank/grade of private one (PV1)/E-1 and he be issued a discharge under other than honorable conditions. 9. On 1 May 1998, he was discharged accordingly. His service was characterized as UOTHC. He completed 2 yeas, 5 months, and 19 days of net active service this period, with 4 months and 6 days of Foreign Service. His DD Form 214 shows: * Items 4a and 4b, Grade, Rate, or Rank/Pay Grade: PV1/E-1 * Item 13: He was awarded or authorized: * Joint Meritorious Unit Award * National Defense Service Medal * Army Service Ribbon * M-16 Rifle Marksman Marksmanship Qualification Badge * Hand Grenade Marksman Marksmanship Qualification Badge * Item 26, Separation Code: KFS * Item 27, Reentry Code: 3 * Item 29, Dates of Time Lost During This Period: 19970930 – 19980129 10. The applicant states, initially, he was discharged for not wanting to turn over evidence on two NCOs in his unit who were involved in illegal activities. He was given information that he could reenlist after six months and would have a reentry (RE) code 1; he attained the rank/grade of specialist (SPC)/E-4, and he is also noting the two Army Achievement Medals he received are undocumented on his final paperwork. His record shows he enlisted, at the age of 17 years old, and court-martial charges were preferred against the applicant for one specification of being AWOL, resulting in 122 days of lost time. He completed 29 months of his 48 months contractual obligation. His record does not contain nor does the applicant provide any evidence that he attained the rank/grade of SPC/E-4 or that he was awarded two Army Achievement Medals. 11. AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. 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. 12. AR 635-5 (Personnel Separations – Separation Documents) stated for: * Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) enter active duty grade of rank and pay grade at the time of separation * Item 13, (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), self-explanatory * Item 27 (Reentry Code), see chapters 1 and 2, and appendix D, AR 601–280 for reenlistment eligibility codes to be entered on copies 2, 4, 7, and 8 only. For members discharged for cause (for example, under the Trainee Discharge Program (TDP) or for medical reasons), give the proper reenlistment eligibility code 13. AR 601-280 (Personnel Procurement-Army Reenlistment Program), Chapter 2, stated for moral and administrative disqualifications the proper RE code will be entered on the DD Form 214 to indicate eligibility for future RA service. In some cases persons being discharged or separated under AR 635-200, chapter 10, may be totally ineligible for reenlistment at any time. 14. AR 601-210 (Regular Army and Reserve Enlistment Program), Table 3-1 includes a list of Reentry codes. Reentry code 1 applies to Soldiers who are considered 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. 15. AR 635-5-1 (Separation Program Designator (SPD) Codes), identified SPD code KFS as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. 16. The SPD/RE Code Cross Reference Table provided RE code 3 as the proper RE code to assign to Soldiers separated with SPD code KFS. 17. The applicant states he was advised he would receive an automatic upgrade, The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge. Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable. The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge. 18. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement regarding the period of AWOL, his record of service, his deployment, the frequency and nature of his misconduct, the reason for his separation and whether to apply clemency. The Board considered the applicant’s statement regarding his current (post-service) employment, but found no additional evidence of post-service achievements or letters of reference in support clemency. After a complete review of the case file, the Board determined by preponderance of evidence that clemency was warranted and a discharge upgrade was warranted; the Board found the evidence insufficient to support a change to the applicant’s Rank/Grade at separation and RE Code. The Board found no evidence of orders for two Army Achievement Medals and the applicant provided none. The Board concurs with the correction stated in the Administrative Note(s) that follow. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. In addition to the correction stated in the Administrative Note(s) that follow, the Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 1 May 1998 to show in item 24 (Character of Service) – “General, under honorable conditions”. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains further upgrading of the characterization of his discharge, adding two AAMs, changing his rank to SPC and changing his RE Code on his DD Form 214. 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): A review of the applicant’s record shows his DD Form 214 (Certificate of Release or Discharge from Active Duty), for period ending 1 May 1998, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214, item 18 (remarks) by adding "SERVICE IN KUWAIT FROM 1 SEPTEMBER 1996 TO 6 JANUARY 1997. 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, set forth the basic authority for the administrative separation of enlisted personnel, it states: a. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel. 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. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 3. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214 (Certificate of Release or Discharge from Active Duty). It stated for: * Items 4a and 4b enter active duty grade of rank and pay grade at the time of separation * Item 13, self-explanatory * Item 27, See chapters 1 and 2, and appendix D, AR 601–280 for reenlistment eligibility codes to be entered on copies 2, 4, 7, and 8 only. 4. AR 601-280 (Personnel Procurement-Army Reenlistment Program), in effect at the time, prescribed eligibility criteria and options currently available in the Army Reenlistment Program. It outlines uniform procedures for immediate reenlistment or extension of expiration of term of service (ETS) of those persons serving in the Active Army. Chapter 2, stated for moral and administrative disqualifications the proper RE code will be entered on the DD Form 214 to indicate eligibility for future RA service. In some cases persons being discharged or separated under AR 635-200, chapter 10, may be totally ineligible for reenlistment at any time. 5. AR 601-210 (Regular Army and Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and U.S. Army Reserve (USAR). Table 3-1 includes a list of RE codes. * RE-1 applies to Soldiers completing their terms of active service who are considered 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 unless a waiver is granted. 6. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided 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 KFS as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial. 7. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular 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 KFS. 8. 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 the applicant. ABCMR Record of Proceedings (cont) AR20180016715 4 1