IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120020584 


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, in effect, an upgrade of his uncharacterized discharge, correction of his narrative reason for separation, and removal of his lost time.

2.  The applicant states he submitted an application to the Army Discharge Review Board (ADRB) in 2009.  He received a decision that upgraded his reentry eligibility (RE) code from RE-4 to RE-1.  However, no change was made to his lost time (28 August 2006-14 October 2007).  He will not be able to reenter military service with the lost time on his DD Form 214 (Certificate of Release or Discharge from Active Duty).  The lost time was caused by the airlines.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army on 28 August 2006.  He was assigned to the 120th Adjutant General Battalion, Fort Jackson, SC, for training.

2.  On 28 August 2006 after having failed to report for training, his gaining unit reported him as absent without leave (AWOL) and he was dropped from the rolls as a deserter on 27 September 2006.  He ultimately surrendered to military authorities at Fort Buchanan, PR, on 15 October 2007.

3.  On 22 October 2007, court-martial charges were preferred against the applicant for one specification of being AWOL from 28 August 2006 to 15 October 2007.

4.  Also on 22 October 2007, 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, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.

5.  In his request for discharge, he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* by requesting discharge, he understood he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge
* he further acknowledged he understood that if the discharge request were approved, he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits administered by the Department of Veterans Affairs
* he also acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws

6.  His chain of command recommended approval with the issuance of a discharge under other than honorable conditions.

7.  On 8 November 2007, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10 and directed his reduction to the lowest enlisted grade (if applicable) with the issuance of a discharge under other than honorable conditions.

8.  On 5 December 2007, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 month and 21 days of creditable active service.  Additionally, this form shows:

* item 25 (Character of Service) – "UNDER OTHER THAN HONORABLE CONDITIONS"
* item 26 (Separation Code) – "KFS"
* item 27 (RE Code) – "4"
* item 28 (Narrative Reason for Separation) – "IN LIEU OF TRIAL BY COURT-MARTIAL"
* item 29 (Dates of Time Lost During This Period) – "UNDER 10 USC 972:  20060828-20071014"

9.  On 16 December 2010, the ADRB reviewed his case and determined his discharge was inequitable.  The ADRB voted to grant partial relief in the form of an upgrade of his discharge to "uncharacterized," the RE code to "RE-1," and restoration of the grade to "E-2."

10.  Accordingly, he was reissued a new DD Form 214 that shows in:

* item 25 – "UNCHARACTERIZED"
* item 26 – "KFS"
* item 27 – "1"
* item 28 – "SECRETARIAL AUTHORITY"
* item 29 – "UNDER 10 USC 972  20060828-20071014"

11.  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.  An uncharacterized separation is an entry-level separation.  A separation will be described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.  Entry-level status is the first 180 days of continuous active duty or the first 180 days of continuous active duty following a break in service of more than 92 days of active military service.

	c.  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.

	d.  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:

	a.  SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of discharge in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that RE-4 will be assigned to members separated under these provisions with an SPD code of KFS.

	b.  SPD code JFF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 5-3 by reason of Secretarial Authority.  The SPD/RE Code Cross Reference Table stipulates that RE-1 will be assigned to members separated under these provisions with an SPD code of JFF.

13.  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 includes a list of RE codes:

* an RE-1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army – they are qualified for enlistment if all other criteria are met
* an RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable – they are ineligible for enlistment unless a waiver is granted
* an RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification – they are ineligible for enlistment

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Item 29 shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration of term of service (ETS) will be entered.  Time lost under Title 10, U.S. Code, section 972, is not creditable service for pay, retirement, or veterans' benefits; however the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 28 August 2006.  He never reported to training.  Accordingly, he was reported as AWOL and subsequently as a deserter.  Over a year later, he surrendered to military authorities at Fort Buchanan, PR.

2.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed 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.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  A discharge under other than honorable conditions is normally appropriate under the provisions of chapter 10 of Army Regulation 635-200.  A separation is described as an entry-level separation if processing is initiated while a member is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty.

4.  Here, the applicant's AWOL and deserter status clearly established that a discharge under other than honorable conditions was the appropriate characterization of service.  However, the ADRB determined that such characterization is inequitable and, as such, changed it to uncharacterized.  In other words, his characterization of service was not improper, it was inequitable.

5.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions.

6.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and the characterization must be approved by the Secretary of the Army.  Since the circumstances that led to his discharge warranted his discharge under other than honorable conditions, he is not entitled to an honorable discharge.

7.  The evidence of record further confirms that:

	a.  His separation and RE codes were assigned based on his discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The appropriate SPD code and corresponding RE code associated with this type of discharge are "KFS" and "RE-4."  Therefore, he received the appropriate SPD and RE codes associated with his discharge and he is not entitled to the requested relief.  

	b.  However, the ADRB changed the narrative reason for separation to "Secretarial Authority" and the RE Code to an RE-1, as a matter of equity, not statute or regulation.  The appropriate SPD code associated with a "Secretarial Authority" as a narrative reason for separation is "JFF."  As a matter of equity, although he did not specifically request the change, his re-issued DD Form 214 should be administratively corrected to show this SPD code.  This administrative error does not require action by the Board, and administrative correction of the applicant’s records will be accomplished by the Army Review Boards Agency (ARBA) Case Management Division (CMD) as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

8.  As for the lost time, he was AWOL from 28 August 2006 to 14 October 2007.  By law and regulation, periods of AWOL, confinement, and desertion are considered lost time which is not creditable service for pay, retirement, or veterans' benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of time lost were later made up.  Not only is there no evidence that he made up this lost time, even if he did so, the requirement to list the lost time on the DD Form 214 remains a valid requirement.  In view of the foregoing, there is no basis for changing his dates of lost time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the ARBA CMD administratively correct the records of the individual concerned by deleting from item 26 of his reissued DD Form 214 the entry "KFS" and replacing it with the entry "JFF." 




      _____________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)                                         AR20120020584



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ABCMR Record of Proceedings (cont)                                         AR20120020584



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