BOARD DATE:	  24 October 2014

		DOCKET NUMBER:  AR20130004151 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.  In addition, he requests that the reason for separation be changed to hardship/dependency.

2.  The applicant states his discharge was inequitable and should be upgraded to honorable.  The reason he went absent without leave (AWOL) was problems with his family.  His discharge was improper because he was denied the rights available to him during his discharge proceedings.

3.  The applicant provides no additional documentation.

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 had prior service in the Army National Guard.  He enlisted in the Regular Army on 27 March 1996 in the rank/grade of private first class (PFC)/
E-3.  He completed training and he was awarded military occupational specialty 67U (CH-47 Helicopter Repairer).

3.  A DD Form 458 (Charge Sheet), dated 15 April 1997, shows charges were preferred against the applicant for being AWOL from 1 March through 12 April 1997.

4.  On 15 April 1997, he consulted with legal counsel, who advised him of the basis for his pending trial by court-martial, the maximum permissible punishment authorized, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.

5.  After consulting with counsel, the applicant submitted a request for 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.  He acknowledged he understood he could be discharged under other than honorable conditions and given an under other than honorable conditions discharge, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he was guilty of the charge against him or a lesser included offense contained therein.  He elected not to make a statement in his own behalf.

6.  On 20 June 1997, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge and directed the applicant be reduced to private (PV1)/E-1.

7.  On 8 July 1997, the applicant was discharged accordingly.  He completed 1 year, 2 months, and 3 days of net active service this period with 43 days of time lost.  The DD Form 214 he was issued at the time shows in:

* item 24 (Character of Service) – under other than honorable conditions
* item 25 (Separation Authority) – Army Regulation 635-200, chapter 10
* 
item 26 (Separation Code) – KFS
* item 28 (Narrative Reason for Separation) – in lieu of trial by court-martial

8.  There is no evidence in the available record that shows he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his family issues prior to his AWOL and charges being preferred against him.

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

	a.  	A chapter 6 separation under this chapter is for the convenience of the Government.  It states Soldiers of the Active Army may be discharged or released because of genuine dependency or hardship.

 		(1)  Dependency exists when death or disability of a member of a Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for principal care or support.

		(2)  Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouse's) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.

	b.  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.

	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.
10.  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 that the 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 for the good of the service – in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  Evidence of record shows he had a lengthy period of AWOL.  Based on this fact, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or a general discharge.

4.  The applicant contends that his narrative reason for separation should be changed to hardship/dependency.  There is no evidence and the applicant did not provide any evidence that shows he applied for or that he was denied the opportunity to submit an application for a dependency or a hardship discharge.  In fact, after reviewing the court-martial charge preferred against him, he voluntarily requested discharge.  He failed to make a statement at that time where he could have raised this issue in mitigation.  Accordingly, the applicant 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.  As such, there is no evidence of error or injustice in the authority and reason for his discharge entered on his DD Form 214.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130004151



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ABCMR Record of Proceedings (cont)                                         AR20130004151



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