IN THE CASE OF:   
 
  BOARD DATE: 25 July 2023 
 
  DOCKET NUMBER: AR20230001052 
 
 
APPLICANT REQUESTS:  
 
• an upgrade of his characterization of service from under other than honorable conditions to under honorable conditions (general)  

• an upgrade of his KFS separation code 

• a personal appearance before the board 


 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 293 (application for the Review of Discharge from the Armed Forces of the United States), 19 October 2022 

• DD Form 149 (Application for Correction of Military Record), 19 October 2022 


 
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, he would like to upgrade his discharge so he can apply for and receive medical benefits from the Department of Veteran Affairs. 
 
3.  The applicant enlisted in the regular Army on 18 November 1996. 
 
4.  The applicant’s record contains two DA Forms 4187 (Personnel Action), which show the below changes to his duty status: 
 
• Present for Duty (PDY) to Absent Without Leave (AWOL) – 12 January 1998 

• AWOL to Dropped From Rolls (DFR) – 11 February 1998 


 
5.  On 11 February 1998, court martial charges were preferred against the applicant for violation of Article 85 (Desertion). Specification: the applicant did, on or about  
12 January 1998, without authority, absent himself from his unit and did remain so absent until a date yet to be determined. 
 
6.  His record contains a DD Form 616 (Report of Return of Absentee), dated 6 March 1998, which shows the applicant was apprehended by military authorities and returned to military control on 12 February 1998. 
 
7.  On 12 February 1998, the applicant's duty status was changed from DFR to PDY. 
 
8.  The specific circumstances surrounding the applicant’s separation packet is not available for the Board to review. However, the applicant's record contains a duly constituted DD Form 214 (Certificate of Release or Discharge From Active Duty) that shows he was discharged on 26 August 1998, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial, in the rank/grade of Private/E-1. His service was characterized as under other than honorable conditions and he received a separation code of KFS and a reentry code of 3.. He completed 1 year, 8 months, and 8 days of active service with lost time from 12 January 1998 to 11 February 1998. Additionally, his DD Form 214 does not list any awards or decorations. 
 
9.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board’s 15-year statute of limitations. 
 
10.  The pertinent Army regulation in effect at the time provided discharges under the provision of Army Regulation 635-200, chapter 10, where voluntary requests from the Soldier to be discharged in lieu of a trial by court-martial. 
 
11.  The Board should consider the applicant's new argument and his overall record in accordance with the published equity, injustice, or clemency determination guidance. 
  
BOARD DISCUSSION: 
 
1.  The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 
 
2.  After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered.  
 
 a.  The applicant’s separation packet is not available for review. However, his DD Form 214 shows he was discharged under Chapter 10 of AR 635-200, in lieu of court-martial and his service was characterized as UOTHC. The issuance of a discharge under chapter 10 of AR 635-200 required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no evidence that would indicate the contrary. The applicant provided insufficient evidence of post-service achievements, letters of reference/support, or evidence of a persuasive nature in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 
 
 b.  The applicant's narrative reason for separation was assigned based on the fact that he requested voluntary discharge in lieu of trial by a court-martial in accordance with Chapter 10 of AR 635-200. Absent his AWOL, there was no fundamental reason to prefer court-martial charges against him or for him to request a voluntary discharge in lieu of trial by a court-martial. The only valid narrative reason for separation permitted under that paragraph is "in lieu of trial by court-martial" and the appropriate separation code associated with this discharge is KFS which is correctly shown on his DD Form 214. 
 
  
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
:  : : GRANT FULL RELIEF 
 
:  : : GRANT PARTIAL RELIEF 
 
:  : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
    7/25/2023X

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 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  
 
 a.  Chapter 10 provided that a member who 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 member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred. The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority. Commanders will ensure that a member is not be coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time to consult with consulting counsel and to consider the wisdom of submitting such a request for discharge. After receiving counseling, the member may elect to submit a request for discharge for the good of the service. The member will sign a written request, certifying that they were counseled, understood their rights, may receive a discharge under other than honorable conditions, and understood the adverse nature of such a discharge and the possible consequences. A discharge under other than honorable conditions was normally appropriate for a member who is discharged for the good of the service. However, the discharge authority may direct an honorable or general discharge if such are merited by the member's overall record during the current enlistment. 
 
 b.  An honorable discharge is a separation with honor. Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration for the member's age, length of service, grade, and general aptitude. Where a member has served faithfully and performed to the best of his ability and there is no derogatory information in his military record, he should be furnished an honorable discharge certificate.  
 
 c.  A general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 
 
 d.  A discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct and for the good of the service.  
 
3.  Army Regulation 635-5-1 (Personnel Separations, Separation Program Designators (SPD), in effect at the time, shows the separation code "KFS" was assigned for Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, with the narrative reason of "In Lieu of Trial by court-Martial." 
 
4.  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. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice. This guidance does not mandate relief but provides standards and principles to guide Boards in application of their equitable relief authority.  
 
 a.  In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards 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. 
 
5.  Army Regulation 15-185, paragraph 2-11 states applicants do not have the right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires.  
 
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