IN THE CASE OF:	  

		BOARD DATE:	        07 APRIL 2009

		DOCKET NUMBER:  AR20080019887 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that:

	a.  his discharge under other than honorable conditions, which was upgraded to a general discharge under honorable conditions by the Army Discharge Review Board (ADRB) in September 2005, be upgraded to an honorable discharge or, in the alternative, that his general discharge be affirmed;

	b.  item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to Secretarial authority;

	c.  item 26 (Separation Code) of his DD Form 214 be changed to "JFR" (Disability – Other) or "KNL" [the latter of which is not and was not at the time a valid Separation Program Designator (SPD) code];

	d.  item 28 (Narrative Reason for Separation) of his DD Form 214 be changed to show that he was separated due to disability or for the good of the Service/ Secretarial authority; and

	e.  the time lost shown in item 29 (Dates of Time Lost During This Period) of his DD Form 214 be removed.

2.  The applicant essentially states that his request is due to mitigating and extenuating circumstances that affected his performance on active duty, his separation, and ultimately his reintegration to civilian life.  He also contends that 
a discharge upgrade would be in the best interest of his health and welfare and his family who are currently suffering misfortune and hardship due to the same circumstances that were not addressed or considered appropriately at the time of his separation.  Further, he claims that he was not aware that he had an option for a mental evaluation, and feels that he did not receive proper medical treatment or diagnosis prior to his separation, but that if he had, he more than likely would not have been put out under the circumstances that he was.

3.  The applicant provides two undated and unsigned statements either prepared by the applicant in the third person narrative mode or by a third party; his 
DD Form 214 after his discharge was upgraded by the ADRB; his originally issued DD Form 214; a letter, dated 20 March 2006, from the Department of Veterans Affairs (DVA); one page of information on review of discharges from a DVA website; a memorandum, dated 6 December 2003, from a psychiatrist; five Standard Forms 600 (Chronological Record of Medical Care); a document with an extract of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) and comments that he was unaware that he had an option for a mental evaluation that would have been pertinent to his discharge; an undated self-authored statement; a 28 April 2008 third-party letter from his wife; a memorandum, dated 6 October 2003, from a first sergeant at the time; a 3 October 2003 letter from a first lieutenant who served with him in Korea; third-party statements, four of which are dated 1 October 2003, two dated 3 and 5 October 2003, respectively, and one undated; and an internet article printed on 4 November 2008 regarding the relaxing of military Post-Traumatic Stress Disorder (PTSD) requirements in support of this application.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's military records show that he enlisted in the Maryland Army National Guard (MDARNG) on 4 May 1995.  He completed initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman).  On 25 March 1997, he was discharged from the MDARNG in order to enlist in the Regular Army, which he did on 26 March 1997.  He progressed in rank to staff sergeant (SSG)/E-6 on 1 February 2003, and served in Jordan and Afghanistan (from 17 September 2001 to 15 November 2001) and in Kuwait and Iraq (from  28 February 2003 to 21 December 2003).

3.  The applicant was awarded the Army Commendation Medal for exemplary service during combat operations with the 101st Airborne Division (Air Assault) from 1 March 2003 to 7 October 2003 during Operation Iraqi Freedom.  His 
DD Form 214 also shows that he was awarded the Combat Infantryman Badge for actively engaging in combat operations while assigned to an infantry unit of brigade, regimental, or smaller size.

4.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period August 2003 through December 2003 shows that he set a bad example for his subordinates by disobeying a general officer's directive in combat by failing to properly dispose of enemy equipment, and that he was incarcerated for this offense.

5.  Although the complete facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records did contain a memorandum, dated 28 April 2004, which shows that the proper separation authority approved the applicant's voluntary request for discharge in lieu of trial by court-martial, and that the proper separation authority directed that the applicant be issued a discharge under other than honorable conditions.  He also directed that the applicant be reduced in rank and pay grade to private (PV1)/E-1.  On 13 May 2004, the applicant was discharged accordingly.  Item 25 of his DD Form 214 shows that the authority for his discharge was Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).  Item 26 of this document shows that he was assigned an SPD code of KFS (In Lieu of Trial by Court-Martial), and item 28 shows that his narrative reason for separation was in lieu of trial by court-martial.  Item 29 of this document also shows that he had lost time from 22 December 2003 to 30 April 2004.

6.  On 16 September 2005, the ADRB majority voted to upgrade the applicant's under other than honorable conditions discharge to a general under honorable conditions discharge.  This action also entailed a restoration of the applicant's rank and pay grade to SSG/E-6.  The ADRB Case Report indicated the applicant was in military confinement from 22 December 2003 through 30 April 2004.
7.  By letter dated 20 March 2006, the DVA informed the applicant, in part, "Even though your discharge was upgraded to Under Honorable Condition on 11-11-2005; however, Public Law 95-126 prohibits payment of VA benefits based solely on a discharge upgraded under the DOD (Special) Discharge Review Program.  The upgrade made by a Discharge Review Board is not binding upon the VA for benefits determinations."

8.  In one of the undated and unsigned statements either prepared by the applicant in the third person narrative mode or by a third party, it appears the applicant contends that a review of his record will show that a court-martial did convene and that he was sentenced to 6 months confinement despite the circumstances and his record of service.  He also contends that he served his confinement in full and was released from confinement and discharged with no further assistance, follow-up care, or counseling.  Further, he stated that the time lost in item 29 of his DD Form 214 is what he believes is information that is leading the DVA to believe that Public Law 95-126 is applicable in his case.  He also provided a 20 March 2006 letter from the DVA which stated, in pertinent part, that the upgrade made by a Discharge Review Board is not binding upon the DVA for benefits administration.

9.  Additionally, the applicant provided evidence which shows that he initially sought treatment in October 2003 for symptoms he began experiencing approximately 2 years previously.  He was diagnosed with chronic PTSD due to combat exposure, and it was strongly recommended by medical authority that he continue in mental health treatment through the DVA Healthcare System if he was administratively discharged after his incarceration.

10.  In an undated, self-authored letter, which appears to be the applicant's statement in his own behalf during his separation proceedings, he stated that he made a bad decision at the time that he was truly sorry for and which was ruining his chances of reaching his goal of retiring with not less than 20 years of honorable service.  He also sought mercy because he was married with two small children, and asked that instead of court-martial, he be allowed to receive a Chapter 10 discharge, as this way he would still be punished with a discharge under other than honorable conditions, but his family would not be forced into financial ruin because of his stupidity.  Additionally, he provided third-party statements from members of his former organizations and from his wife who describe him as a Soldier who performed very well and took care of his Soldiers, but simply made a mistake that is hurting both him and his family. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the 
current enlistment.  An honorable discharge is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

12.  The Department of Defense (DOD) Special Discharge Review Program (SDRP) was directed in a memorandum from the Secretary of Defense in 1977.  The SDRP stipulated that all former service members who received undesirable discharges (UDs) [the equivalent now being a discharge under other than honorable conditions) or general discharges during the period 4 August 1964 through 28 March 1973 were eligible for review under the SDRP.  It further indicated that members who received a UD during the Vietnam era would have their discharges upgraded if they met one of the following criteria:  wounded in combat in Vietnam, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia or in the Western Pacific in support of operations in Southeast Asia, completed alternate service or was excused from completion of alternate service under the clemency program instituted in 1974, or received an honorable discharge from a previous tour of military service.

13.  On 8 October 1977, Public Law 95-126 added the provision that 180 days of continuous absence, if it was used as the basis for a discharge under other than honorable conditions, to the list of reasons for discharge which acted as a specific bar to eligibility for benefits administered by the DVA.  The law further required that discharges upgraded under the automatic criteria established under the SDRP be reconsidered under the newly established uniform discharge review standards.  

14.  Army Regulation 635-200, paragraph 3-7a, provides that 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.  Whenever there is doubt, it is to be resolved in favor of the individual.  It is a pattern of behavior and not the isolated incident that should be the governing factor in determination of character of service (emphasis added).  

15.  Army Regulation 635-5-1 (SPD Codes) provides 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.  This regulation provides than an SPD code of "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200.

16.  Army Regulation 635-5 (Separation Documents) provides regulatory instructions for completing the DD Form 214.  In part, if provides that for item 25, the correct entry will be obtained from regulations or directives authorizing the separation.  For items 26 and 28, the correct entry is obtained from Army Regulation 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation.  For item 29, lost time during the period covered by the DD Form 214 is to be entered.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that:

	a.  his under other than honorable conditions discharge, which was upgraded to a general under honorable conditions discharge by the ADRB in September 2005, should be upgraded to an honorable discharge or, in the alternative, that his general discharge should be affirmed;

	b.  item 25 of his DD Form 214 should be changed to Secretarial authority;

	c.  item 26 of his DD Form 214 should be changed to JFR or KNL;

	d.  item 28 of his DD Form 214 should be changed to show that he was separated due to disability or for the good of the Service/Secretarial authority; and

	e.  the time lost shown in item 29 of his DD Form 214 should be removed.

2.  The applicant's contention that he was sentenced to 6 months confinement was noted.  It is also noted that the ADRB Case Report indicated that he had been in military confinement for the period 22 December 2003 through 30 April 2004.  Although it is unclear how long he was initially supposed to be incarcerated, his DD Form 214 clearly shows that he had only 4 months and
10 days of lost time; therefore, if Public Law 95-126 is the reason the DVA is withholding benefits to him, it appears they are doing so in error.  The applicant did not have 180 days of continuous absence; it appears he was not "absent" at all (i.e., it appears he was under military control); and his discharge was not upgraded under the SDRP (he clearly did not qualify for a discharge upgrade under that program).  

3.  It does, however, appear that the DVA is withholding benefits to him because while the ADRB upgraded his under other than honorable conditions discharge to a general under honorable conditions discharge, his upgraded discharge has not been affirmed.  However, based upon the evidence in this case, it appears that it would be unjust and inequitable to further deny him entitlement to veteran's benefits which both he and ultimately his family can greatly benefit from.

4.  After a careful review of the available evidence, it was found that the applicant's meritorious combat service, as evidenced by his earning the Army Commendation Medal and the Combat Infantryman Badge, mitigates his military- related misconduct, which was an isolated incident in an otherwise honorable 
7-year active duty career.  As a result, and only as a matter of equity, it would be appropriate at this time to affirm his general discharge awarded by the ADRB.  

5.  Had the applicant thought he was deserving of an honorable discharge, he should have taken his case to court-martial.  He chose not to at the time, and this was likely the wise decision for him, for while he only had one isolated incident during his military service, had he chosen to go before a court-martial, he likely could have received a punitive (i.e., bad conduct or dishonorable) discharge.  
However, based upon the applicant's misconduct and his voluntary (emphasis added) request for discharge in lieu by trial by court-martial, further upgrade of his general discharge to an honorable discharge cannot be justified.
  
5.  Items 25, 26, and 28 of the applicant's DD Form 214 show that he was discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation 635-200, and as this was the reason for his discharge, there is no basis for changing these items on his DD Form 214.

6.  While it is understandable why the applicant wishes to have his time lost removed from his DD Form 214, its presence on the DD Form 214 does not constitute an error or injustice, and this entry appears to have been made in accordance with regulatory guidance.  As a result, there is no basis for removing the time lost shown in item 29 of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 affirming his general under honorable conditions discharge awarded by the ADRB.

2.  The Board further determined that 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 to:

	a.  upgrading his general under honorable conditions discharge to an honorable discharge; or

	b.  correcting items 25, 26, 28, and 29 of his DD Form 214.



      ________XXX_______________
               CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080019887



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ABCMR Record of Proceedings (cont)                                         AR20080019887



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