IN THE CASE OF:	  

		BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120019422 


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 (UOTHC) discharge to a general discharge
* a change of his narrative reason for discharge

2.  The applicant states, in effect:

   a.  He realizes the way that he went about seeking a hardship discharge was wrong, but after a meeting with his unit commander and first sergeant he was left with no choice but to go absent without leave (AWOL).  It would have been wrong for him not to have taken care of his family issue.  He was left with choosing between his family and the job.  If he could relive the situation he would not have gone AWOL; he would have planned better for him and his mother.
   
   b.  An upgrade of his discharge would help him obtain a Government job.  He also hopes to graduate with a master's degree. 

3.  The applicant provides a copy of his Student Undergraduate Record.

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 record shows he enlisted in the Regular Army on 
10 February 2009, for 5 years, in pay grade E-2.  He completed training and he was awarded military occupational specialty 25B (Information Technology Specialist).

3.  On 7 March 2011, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  He was charged with one specification of being AWOL from 3 January through 28 February 2011.  On the same date court-martial charges were preferred against him.

4.  On 7 March 2011, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC discharge, the results of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA).  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 8 March 2011, the applicant's battalion commander forwarded the applicant's request for appropriate action.  The battalion commander stated:

   a.  The applicant's conduct rendered him subject to trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  Based on the applicant's previous record, punishment could be expected to have a minimal rehabilitation effect.  He believed a discharge at that time to be in the best interest of all concerned.  
   
   b.  There did not appear to be any reasonable grounds to believe the applicant was experiencing any mental defects, derangement, or abnormality at the time of his misconduct.  He recommended that the applicant receive a UOTHC discharge.
6.  On 5 May 2011, the separation authority approved the applicant's request for discharge, directed reduction to pay grade E-1, and the issuance of a UOTHC discharge.

7.  On 4 June 2011, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with a UOTHC discharge in pay grade E-1.  He was credited with completing 2 years, 1 month, and 25 days of net active service with 57 days of time lost.

8.  Item 26 (Separation Code) of his DD Form 214 shows the entry "KFS."  Item 28 (Narrative Reason for Separation) on this form contains the entry “In Lieu of Trial By Court-Martial.” 

9.  On 5 December 2011, the Army Discharge Review denied his request for an upgrade of his discharge.  

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

	a.  Chapter 10 of the regulation states 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 UOTHC discharge is normally considered appropriate.

	b.  Paragraph 3-7a states an honorable discharge is a separation with honor. 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 will be inappropriate.

	c.  Paragraph 3-7b states 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.

11.  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 those stated reasons.  The SPD of "KFS" as shown on his DD Form 214 was appropriate when the narrative reason for involuntary discharge was "In Lieu of Court-Martial” and the authority for discharge was Army Regulation 635-200, chapter 10.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with being AWOL for 57 days, misconduct triable by a court-martial.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense.  He also acknowledged that he understood he could receive a UOTHC discharge and that he could be ineligible for many or all benefits administered by the VA.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also elected not to submit a statement in his own behalf when he could have raised this issue at the time.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

4.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request this discharge.  Therefore, Item 28 of his DD Form 214 is commensurate with and corresponds to the reason for his discharge.  He provided no information that would indicate the contrary.

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)                                         AR20120019422



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ABCMR Record of Proceedings (cont)                                         AR20120019422



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