IN THE CASE OF:	  

		BOARD DATE:	  1 May 2012

		DOCKET NUMBER:  AR20110021983 


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 an upgrade of his under other than honorable conditions discharge and correction of the narrative reason for his separation.

2.  The applicant states:

* His character of service and reason for separation are unjust
* While in training, he received word that his kids were being exposed to drugs; he wanted to go home and handle the situation and rescue his children
* He spoke with the first sergeant and chaplain but he did not get help because he was in boot camp; so, he decided to go home
* His presence at home stopped his wife from using drugs at least in front of the children; so, he returned to Fort Knox, KY, and turned himself in
* He was incarcerated for 2 to 3 weeks during which he again received word that his wife was using drugs
* He ended up going home in an attempt to salvage his marriage and he ultimately filed for divorce and took custody of his children

3.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Statement from another individual
* Children safety plan
* Divorce decree

CONSIDERATION OF EVIDENCE:

1.  Having served in the U.S. Army Reserve, the applicant enlisted in the Alabama Army National Guard on 9 October 2002.  He entered active duty on 28 January 2003 and he was assigned to Company C, 30th Adjutant General Battalion, Fort Benning, GA.

2.  On 10 March 2003, he departed his unit in an absent without leave (AWOL) status and on 9 April 2003, he was dropped from the Army rolls as a deserter.  He surrendered to military authorities at Fort Knox, KY, on 3 May 2003.

3.  On 7 May 2003, court-martial charges were preferred against the applicant for one specification of being AWOL from 10 March to 3 May 2003. 

4.  On 7 May 2003, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge.  He was advised of the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

5.  In his request for discharge, he acknowledged he:

* was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* acknowledged that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service"

6.  The immediate commander recommended approval with the issuance of an under other than honorable conditions discharge.

7.  Consistent with the chain of command’s recommendation, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed the issuance of an under other than honorable conditions discharge.  On 21 May 2003, the applicant was accordingly discharged. 

8.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He had completed 2 months of creditable active military service and he had 52 days of lost time during this period of enlistment.  This form show in item 26 (Separation Code) the entry "KFS" and in item 28 (Narrative Reason for Separation) the entry "In Lieu of Trial by Court-Martial."

9.  On 20 May 2009, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

10.  He submitted:

	a.  Statement from an individual who states while the applicant was at basic combat training, his wife at the time was doing drugs and seeing other men.  He went AWOL out of concern for his children.  

	b.  A divorce decree and a safety plan, dated 6 April 2004, identifying the rights and responsibilities of the children's parents.

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

12.  Army Regulation 635-5-1 (Separation Program Designator (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. It states that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by a court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant entered active duty on 28 January 2003.  But, shortly thereafter, he departed his unit in an AWOL status and a month later, he was reported as a deserter.  He ultimately returned to military control on 3 May 2003.  Upon his return, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge (a bad conduct or a dishonorable discharge).  Discharge actions processed under chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. 

2.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  His narrative reason for separation was assigned based on his discharge under the provisions of chapter 10 of Army Regulation 635-200, due to his AWOL.  Absent the AWOL, there was no fundamental reason to refer court-martial charges against him or for him to request a voluntary discharge.  The underlying reason for his discharge was the court-martial charge.  He elected a voluntary discharge instead.  The only valid narrative reason for separation permitted under that paragraph is "in lieu of trial by court-martial" which is correctly shown on his DD Form 214. 

4.  His family circumstances at the time are noted.  However, there were many other legitimate ways to help resolve the issues.  He could have elected a court-martial if he believed his family issues would have justified his desertion at the time.

5.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   X______   ___
               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)                                         AR20110021983





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ABCMR Record of Proceedings (cont)                                         AR20110021983



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