BOARD DATE:	  17 May 2012

		DOCKET NUMBER:  AR20110022148 


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 general discharge to fully honorable under Secretarial Authority with a reentry code of 1 and to be awarded the Humanitarian Service Medal (HSM) for his participation in Operation Provide Refuge.

2.  The applicant states that his discharge should be upgraded because there were mitigating circumstances at the time, because he had an excellent record of service, and because the Army Discharge Review Board (ADRB) recognized that his discharge was unjust and unfair.  He also states he should have been awarded the HSM for his participation in Operation Provide Refuge.

3.  The applicant provides a six-page letter explaining his application and copies of the ADRB Case Report and Directive, his DD Form 214 (Certificate of Release or Discharge from Active Duty), and his evaluation reports and awards.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 August 1982 for a period of 4 years, training as an electronic warfare signal intelligence voice interceptor, and a cash enlistment bonus.

2.  He completed training and remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-6 on 1 June 1990.

3.  On 5 March 1995 while stationed in Hawaii, charges were preferred against the applicant for being absent without leave (AWOL) from 21 to 22 February 1995, 24 to 27 February 1995, and 12 to 13 April 1995; two specifications of disobeying a lawful order from a noncommissioned officer; assaulting a noncommissioned officer on duty; wrongfully consuming alcohol on duty; wrongfully possessing drug paraphernalia; and wrongfully possessing marijuana.

4.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records show he was discharged under other than honorable conditions in lieu of trial by court-martial on 18 August 1995 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 13 years of total active service.  He was given a separation program designator (SPD) code of “KFS” (in lieu of trial by court-martial) and an RE code of 3.

5.  The applicant applied to the ADRB for an upgrade of his discharge in April 2008.  The ADRB found that there were several mitigating factors that would merit a partial upgrade of the applicant's discharge and voted to upgrade his discharge to a general discharge.  The ADRB also determined that the facts and circumstances surrounding his discharge were both proper and equitable and voted not to change them.  Accordingly, his discharge was upgraded to a general discharge on 18 February 2009.

6.  A review of the applicant's official records failed to show any evidence that he was awarded the HSM or that he participated in Operation Provide Refuge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  The SPD Code/RE Code Cross Reference Table in effect at the time stated when the SPD code was “KFS”, then an RE code of 3 would be given.

10.  Army Regulation 600-8-22 (Military Awards) states the HSM is awarded to members who, after 1 April 1975, distinguished themselves by meritorious direct participation in a Department of Defense approved significant military act or operation of a humanitarian nature.  A service member must be on active duty at the time of direct participation, must have directly participated in the humanitarian act or operation within the designated geographical area of operations and within specified time limits, and must provide evidence that substantiates direct participation.  Table C-1 of Army Regulation 600-8-22 shows that Operation Provide Refuge (11 February to 11 March 1993) in Kwajalein, Marshall Islands, was approved by the Department of Defense as qualifying for award of the HSM.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and his rank at the time.  The nature of his mitigating circumstances has also been considered; however, his service simply did not rise to the level of a fully honorable discharge.

4.  The ADRB found that the facts and circumstances surrounding the applicant’s discharge were both proper and equitable.  Therefore, he was properly given an SPD code of “KFS” which in turn required an RE code of 3.

5.  Additionally, the applicant failed to show through the evidence of record and the evidence submitted with his application that he is entitled to award of the HSM.

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 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)                                         AR20110022148



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ABCMR Record of Proceedings (cont)                                         AR20110022148



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