IN THE CASE OF: BOARD DATE: 14 June 2023 DOCKET NUMBER: AR20220011102 APPLICANT REQUESTS: In effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge; and to make unspecified changes to his separation code, reentry code and narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge), with a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 18 August 2022 * DD Form 214, for the period ending 29 October 1986 * National Guard Bureau (NGB) Form 22, for the period ending 25 February 2003 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 on VA Form 21-4138, that he was granted leave to go see his newborn son who was born on 3 April 1986. He had only spent a little time with him because he was on active duty, while on leave he received an order to return four days earlier than scheduled. He declined the request to come back and was told he would be disciplined upon his return. He did not return and was absent without leave (AWOL) for about two weeks. When he returned, he was reduced to E-1 and given a choice of returning to duty or being discharged; he elected to be discharged. He later enlisted in the Louisiana Army National Guard (LAARNG) and served one year honorably. 3. On 4 June 1985, the applicant enlisted in the Regular Army for a 3-year and 14-week service obligation. Upon completion of training and award of the military occupational specialty 11B (Infantryman), he was assigned to Fort Lewis, WA and arrived on 6 September 1985. 4. His DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reported AWOL from his unit at Fort Lewis, WA on 19 July 1986. 5. On 26 September 1986, court-martial charges were preferred against the applicant, for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit from on or about 19 July 1986 until on or about 24 September 1986. 6. On 29 September 1986, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service. In his request, he acknowledged he was making the request of his own free will, that no one had subjected him to coercion, and that counsel had advised him of the implications of his request. He further acknowledged he was guilty of the charge, and he was afforded the opportunity to submit a statement in his own behalf. He declined his rights to submit statements in his own behalf and to have a pre-separation physical evaluation. 7. On 10 October 1986, the applicant's commander recommended approval of his discharge request and the issuance of an UOTHC discharge. The commander noted the applicant was AWOL for 67 days until apprehended by civilian authorities, and he went AWOL for personal reasons. 8. On 16 October 1986, the separation authority approved the applicant's request for discharge in lieu of court-martial and directed his reduction to the lowest enlisted grade with the issuance of an UOTHC Discharge Certificate. 9. On 29 October 1986, the applicant was discharged accordingly. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial. He was reduced to the lowest enlisted grade, his service was characterized as UOTHC, and he was credited with completing 1 year, 2 months, and 21 days of net active service this period. His DD Form 214 further shows the following: * Item 24 (Character of Service) "UOTHC" * Item 26 (Separation Code) "KFS" * Item 27 (Reenlistment Code) "RE-3b" * Item 28 (Narrative Reason for Separation): "For the Good of the Service - In Lieu of Court-Martial" 10. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 11. The applicant provides an NGB Form 22 showing he served honorably in the LAARNG for 1 year with a separation date of 25 February 2003. 12. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support for the Board consideration to weigh a clemency determination. Based upon a preponderance of evidence, the Board determined that the narrative reason for separation with corresponding separation code, reentry code the applicant received upon separation were not in error or unjust. 2. The Board determined the applicant’s service record exhibits numerous instances of misconduct during his enlistment period for 1 year, 2 months, and 21 days of net active service this period. Furthermore, the Board determined the applicant has not demonstrated by a preponderance of evidence an error or injustice warranting the requested relief, specifically an upgrade of the under other than honorable conditions (UOTHC) discharge to an honorable discharge. Therefore, the Board denied relief. 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-5-1 (Separation Program Designators (SPD)) provided the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states that SPD code "KFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, discharge for the good of the service in lieu of trial by court-martial. The SPD/ Reentry Eligibility (RE) Code Cross Reference Table included in the regulation establishes "RE-3" as the proper code to assign to members separated with SPD code "KFS". 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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// ABCMR Record of Proceedings (cont) AR20220011102 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1