BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120011701 


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 discharge to a general discharge (GD) and a change of the reason for his separation.  

2.  He states he realizes his actions were unbecoming of a Soldier, and he lives with that regret every day.  He is now more mature and a better man.  He desires an upgrade of his discharge and a change of his reentry (RE) code so he may join the military and live his dream of being a Soldier.  

3.  He provides no documentary evidence in support of his request.

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 enlisted in the Regular Army on 11 August 2005.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).

3.  His record shows he served in Iraq from 6 February to 27 April 2007.

4.  On 2 November 2007, he was tried by a summary court-martial and found guilty of:

* nine specifications of failing to go to his appointed place of duty during the period June to September 2007
* two specifications of wrongfully communicating a threat

5.  He was sentenced to be reduced to private/E-1, forfeiture of $802 pay for 1 month, 45 days' hard labor without confinement, and 2 months' restriction.

6.  On 6 November 2007, he acknowledged an order to report for hard labor from 0630 to 1800 daily.

7.  On 21 November 2007, he was ordered to pretrial confinement.  

8.  On 28 November 2007, he was charged with:

* two specifications of willfully disobeying a lawful order to perform hard labor on divers occasions between 2-5 November and 7-20 November 2007
* one specification of wrongfully communicating a threat to kill a noncommissioned officer (NCO)

9.  On 28 November 2007, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the effects of discharge under other than honorable conditions, and of his rights.

10.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  In his voluntary request for discharge, he acknowledged he was guilty of one or more of the charges against him, or lesser included offenses contained therein, which authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood if his request was accepted he could be discharged under other than honorable conditions.  He further acknowledged he understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the Department of Veterans Affairs, be deprived of his rights and benefits as a veteran under both Federal and State law, and encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.

11.  In the statement he submitted in his own behalf, he indicated he took full responsibility for failure to obey a lawful order and offered no excuse for those offenses.  He denied making a threat against anyone in his command.  He stated he was chaperoned by two other Soldiers to a mental health appointment.  The doctor told him to be forthcoming about his feelings about wanting to hurt someone.  He told the doctor he "had feeling [sic] about wanting to hurt [an NCO]" but "had no intent or plan to hurt anyone."  He stated he did not intend his statement to be viewed as a threat.

12.  On 11 December 2007, the separation authority approved his request and directed he be discharged under other than honorable conditions.  On 18 December 2007, he was discharged in accordance with the separation authority's decision.  

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

* item 25 (Separation Authority) – "AR 635-200, CHAP 10"
* item 26 (Separation Code) – "KFS"
* item 27 (RE Code) – "4"
* item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT-MARTIAL"

14.  His record documents no acts of valor, significant achievement or service warranting special recognition.  

15.  On 16 January 2009, the Army Discharge Review Board informed him his request for a change in the character of and/or reason for his discharge was denied.  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.  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.

	b.  Paragraph 3-7b provides that a GD 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.  

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation states separation code "KFS" and reason for separation "in lieu of trial by court-martial" apply to Soldiers discharged under the provisions of Army Regulation 635-200, chapter 10.

18.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD code of "KFS" will be given an RE code of 4.

19.  Army Regulation 635-200 states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 provides a list of the RE codes.  RE code "4" applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with and admitted he was guilty of an offense that authorized the imposition of a punitive discharge, and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

2.  He was convicted by a summary court-martial of nine specifications of failing to go to his appointed place of duty and two specifications of wrongfully communicating a threat.  Shortly after his summary court-martial, he was charged with two specifications of willfully disobeying a lawful order to perform hard labor and one specification of communicating a threat to kill an NCO.  Based on this record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

3.  The narrative reason for separation and RE code shown on his DD Form 214 are correct.  His desire to reenter military service is noted.  However, this desire alone is insufficient reason to change an RE code and narrative reason for separation properly assigned as a result of his voluntary request for discharge in lieu of trial by court-martial.  

4.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20120011701





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ABCMR Record of Proceedings (cont)                                         AR20120011701



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