BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019323 


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 his narrative reason for separation be changed from "for the good of the service - in lieu of court-martial" to "for the Convenience of the Government."  

2.  He states he wasn't provided a rehabilitation program for alcohol, psychological counseling for a fatal accident that occurred during field maneuvers near Giessen Family Readiness Group, or bereavement counseling.  He was a good Soldier prior to the time of the incident.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record - Part II)
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* Letter from the National Personnel Records Center, dated 11 October 2011
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 April 1982
* Letter from the Texas Department of Criminal Justice Parole Division, dated 20 June 2012
* Two character references
* Self-authored statement


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 31 January 1979 and was discharged on 6 August 1981 for immediate reenlistment.  He reenlisted on 7 August 1981 for a period of four years and later extended his reenlistment for 30 months.  He served in Germany from 6 September 1980 through 23 August 1983 and from 17 January 1985 through 10 September 1987.  

3.  His disciplinary history includes:

	a.  his acceptance of nonjudicial punishment under Article 15, UCMJ on two separate occasions for failing to obey a lawful order issued by his commander and operating a vehicle while drunk and causing the vehicle to collide with a road marker.

	b.  a letter of reprimand, dated 29 January 1986, for operating his vehicle erratically and at an excessive rate of speed.  The letter of reprimand also stated he failed to stop at a red light, had an odor of alcohol detected on his breath, refused to submit to a balloon test, and was subsequently administered a blood alcohol test with results indicating 1.92 milligram/milliliter.  

	c.  a bar to reenlistment on 28 August 1986 and 12 December 1986.  

4.  On 23 July 1987, charges were preferred against the applicant for wrongfully driving a privately owned vehicle without a valid U.S. Army Europe driver's license, operating a vehicle while drunk, and wrongfully and unlawfully making a false official statement.

5.  On 12 August 1987, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, and he didn't submit statements in his own behalf.

6.  On 20 August 1987, the separation authority approved his request for discharge, reduction to the lowest enlisted grade, and directed the issuance of a discharge under other than honorable conditions (UOTHC).

7.  He was discharged on 14 September 1987 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 8 years, 7 months, and 14 days active military service.  His DD Form 214 shows he was assigned a separation program designator (SPD) code of "KFS" (in lieu of trial by court-martial).

8.  On 30 January 1997, the Army Discharge Review Board denied the applicant's request for a change in the character and/or reason of his discharge.

9.  He provided a self-authored statement and stated:

	a.  he joined the Army to be a good Soldier and to help support his mother.

	b.  he was young and he lost his focus for a time, but he later regained it.

	c.  his best friend and colleague died in a serious accident during a field exercise in Giessen, Germany.  He was set on being a career Soldier for his country and family and he received numerous awards.  However, after the death of his friend, his life took a downward spiral.  He began to drink heavily, but his unit didn't afford him the opportunity of alcohol or drug counseling which he feels was unfair.  

	d.  he's now getting treatment and he's on the right road of recovery.  

10.  He provided two character references who stated:

	a.  he was the applicant's professor in the Fall of 2011 and was impressed by the applicant's perseverance in completing his requirements for his class.  The professor described the applicant as being a good role model, possessing strong leadership skills and good work ethics.

	b.  he serves as an ordained minister and has known the applicant for at least 15 years.  The applicant has worked continuously to provide for his family, attended school at night, completed online courses, and is now a productive citizen in society.  He is currently attending church and participating in drug and alcohol counseling.  
11.  He provided a letter, dated 20 June 2012, from the Texas Department of Criminal Justice Parole Division, which indicated he was on parole due to a felony conviction that occurred in Louisiana, was being supervised in Houston since June 2011, and has been available for all home visits and reported each month.  

12.  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.  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 UOTHC is normally considered appropriate.

13.  Army Regulation 635-5-1 (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's to be used for these stated reasons.  The regulation shows that SPD KFS as shown on the applicant's DD Form 214 specifies the narrative reason for discharge as "in lieu of trial by court-martial" and the authority for discharge under this SPD is Army Regulation 635-200, chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he was charged with the commission of an offense which is punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  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.  

2.  Although the applicant contends he wasn't provided rehabilitation program for alcohol, his contention that he was never treated does not justify the misconduct for which he was convicted.  There is no evidence he took steps to self-refer for alcohol abuse treatment while in the Army.  

3.  Although there is no evidence he received psychological or bereavement counseling, he could have self-referred for mental health counseling.

4.  His narrative reason for separation was based on his voluntary request for discharge in lieu of trial by court-martial and there is no basis upon which this reason should be changed.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, 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)                                         AR20120019323





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ABCMR Record of Proceedings (cont)                                         AR20120019323



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