IN THE CASE OF:	  

		BOARD DATE:	    5 December 2013

		DOCKET NUMBER:  AR20130006527 


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 discharge and change to his separation authority, reentry eligibility (RE) code, and narrative reason for separation.
 
2.  The applicant states he enlisted in the U.S. Army Reserve (USAR), enrolled in the Reserve Officers' Training Corps (ROTC) Program, and served in the Simultaneous Membership Program with his Army unit while in college.  He also completed reconnaissance and ranger training.

	a.  He graduated at the top of his ROTC class and received the Distinguished Military Graduate Award and the Distinguished Military Student Award.  He was on the verge of being commissioned as a second lieutenant in the New York Army National Guard (NYARNG); however, his passion to serve on full-time active duty rather than only one weekend a month resulted in him enlisting in the Regular Army (RA).

	b.  He got married in January 1989 before enlisting in the RA.  His hopes for attending Officer Candidate School (OCS) were extinguished when his first sergeant made it clear to him that he would never consider granting him the opportunity to apply for OCS.  He adds the first sergeant made things very difficult for him.

	c.  He was assigned to the 82nd Airborne Division at Fort Bragg, NC, and he spent extended periods of time in the field.  He became concerned for the safety and well-being of his wife, who was living off-post in a remote rural area.  He expressed his concerns to his chain of command, but he received no response.

	d.  He made a hasty decision and went absent without leave (AWOL).  It was the worst decision he ever made.  After a year, he returned to the U.S. Army at Fort Dix, NJ.  He was told he would be processed for separation and issued an under other than honorable conditions discharge.  However, he does not remember being given the opportunity to consult with a lawyer about his rights and options.

	e.  After about a decade of personal and financial hardships, he returned to school at night during periods of unemployment.  He has earned the highest level of certification that Microsoft has to offer as a Microsoft Certified Systems Engineer (MCSE).  He is currently an accomplished Systems Engineer for Cisco.

3.  The applicant provides copies of his separations documents, résumé, performance evaluation, and a letter of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge to an honorable discharge.  He also requests a change to the:

* Separation Authority:

* from Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (For the Good of the Service - in Lieu of Court-Martial)
* to Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government), paragraph 5-3 (Secretarial Plenary Authority)

* RE code from "3" to "1"
* Narrative Reason for Separation:

* from "Misconduct (Minor Infraction)"
* to "Secretarial Plenary Authority"

2.  Counsel states the Board should excuse the applicant's delay in submitting the application and approve the request based on equity and/or propriety.  Counsel states:

	a.  the applicant remembers being told he could receive an under other than honorable conditions discharge, but he does not recall receiving a Charge Sheet for being AWOL or reviewing the charges against him.  In addition, item 21 (Signature of Member Being Separated) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry, "Soldier Not Available to Sign."  The applicant requested a copy of his records from the National Archives and Records Administration (NARA); however, neither a Charge Sheet nor a request for separation were in his records.

	b.  a Soldier would normally meet with a trial defense attorney to discuss available options.  He provides an extract of Army Regulation 635-200, paragraph 10-2 (Personal decision), and Figure 10-1 (Sample format for discharge in lieu of trial by court-martial) that outline the process and procedures governing a Soldier's request for discharge for the good of the service - in lieu of court-martial.  Counsel concludes the applicant was not properly counseled with regard to the separation action; therefore, he was denied due process.

	c.  since the applicant's discharge, he has gone back to school and obtained certification as an MCSE.  In addition, he was recently sent to the Fort Bragg area as a contractor to support the mission.

3.  Counsel provides a summary of the applicant's military service, including the reason for him going AWOL and his return a year later.

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 limitations for timely filing.

2.  The applicant enlisted in the RA on 11 January 1989 for a period of 4 years.  He was awarded military occupational specialty 11B (Infantryman) and he completed airborne training.

3.  On 2 June 1989, he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 325th Infantry Regiment, 82nd Airborne Division, Fort Bragg.

4.  His record contains a DD Form 458 (Charge Sheet) that shows court-martial charges were preferred against the applicant on 14 June 1990 for being AWOL from on or about 15 August 1989 to on or about 6 June 1990.

5.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated
6 June 1990, shows the applicant was advised by a commissioned officer assigned to the U.S. Army Personnel Control Facility, Fort Dix, that he was accused of violating Article 86 (AWOL) of the Uniform Code of Military Justice (UCMJ).  He was also advised of his rights.  The applicant indicated with his signature that he understood his rights, waived his rights, and he was willing to discuss the offense and make a statement without talking to a lawyer first and without having a lawyer present.

6.  On 14 June 1990, the applicant consulted with Captain D____ C. D____, a Judge Advocate General’s Corps officer.  She advised him of his contemplated court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge if his request is approved, and the procedures and rights available to him.

7.  On 14 June 1990, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial because of the charge against him.  The applicant acknowledged that he was not subjected to coercion with respect to his request for discharge.

	a.  He affirmed he was afforded the opportunity to consult with appointed counsel prior to completing his request for discharge.  He understood that by submitting his request for discharge, he acknowledged his understanding of the offense charged and that he was guilty of the charge against him or of a lesser included offense.

	b.  He was advised that he might be discharged under conditions other than honorable, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an under other than honorable conditions discharge.

	c.  He was advised that he could submit any statements he desired in his own behalf; however, he elected not to do so.

	d.  The applicant and his counsel placed their signatures on the document.

8.  A Request for Delay in Processing Court-Martial Charges, dated 14 June 1990, shows the applicant requested a delay in the processing of court-martial charges against him until the Commanding General, Fort Dix, acted on his application for discharge under the provisions of Army Regulation 635-200, chapter 10.

9.  A DA Form 31 (Request and Authority for Leave) shows the applicant requested excess leave from 15 June 1990 to an indefinite period, for the convenience of the government during the processing of his request for discharge.

10.  The applicant's immediate commander recommended approval of the applicant's request for discharge with service characterized as under other than honorable conditions.

11.  On 21 September 1990, 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 reduction to the lowest enlisted grade.

12.  On 4 October 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued shows 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 an under other than honorable conditions discharge.  He completed 10 months and 29 days of creditable active service with 295 days of time lost.  It also shows in:

* item 21 (Signature of Member Being Separated):  Soldier Not Available to Sign
* item 25 (Separation Authority):  Army Regulation 635-200, chapter 10
* item 26 (Separation Code):  KFS
* item 27 (Reentry Code):  3
* item 28 (Narrative Reason for Separation):  For the Good of Service - In Lieu of Court-Martial

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  In support of his application the applicant provides:

	a.  Headquarters, NYARNG, Latham, NY, memorandum, dated 6 July 1989, that shows the applicant was honorably discharged from the NYARNG.

	b.  Headquarters, U.S. Army Training Center, Transition Point, Fort Dix, NJ, memorandum, subject:  Separation, dated 4 October 1990, and a DD Form 214 that shows the applicant was discharged under other than honorable conditions on 4 October 1990.

	c.  National Personnel Records Center (NPRC), NARA, St. Louis, MO, letter, dated 1 November 2012, that shows the applicant was provided copies of essential documents from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

	d.  His résumé that shows his education and qualifications, pre-sales and technical skills, licenses and certificates, and work history from 2006 to the present.

	e.  Fiscal Year 2012 Mid-Year Career Discussion, dated 21 February 2012,  that shows the applicant's manager provided him with a positive indication of his performance at that point in the rating period.

	f.  A letter written by Senior Chief Petty Officer C____ R. R____, U.S. Navy (Retired), dated 28 January 2013, who states he has known the applicant as a personal friend for 35 years.  He attests to the applicant's commitment to his family and career, his hard work, and continuing pursuit of his education.

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

	a.  Chapter 5, paragraph 5-3, states the separation of enlisted personnel under this paragraph is the prerogative of the Secretary of the Army.  Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

	b.  Chapter 10 of that regulation provides, in pertinent part, 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.

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, separation approval authority documentation, separation orders, or any other document authorized for filing in the AMHRR.

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It shows for:

		(1)  item 21, have the Soldier sign the original in ink using a ballpoint pen.  If Soldier is not available to sign (discharged in absentia or physically unable), enter "Soldier Not Available To Sign";

		(2)  item 25, enter the regulatory or other authority cited in directives authorizing separation;

		(3)  item 26, enter the proper Separation Program Designator (SPD) code representing the specific authority for separation;

		(4)  item 27, see the governing Army Regulation for reenlistment eligibility codes to be entered on copies 2, 4, 7, and 8 only; and

		(5)  item 28, enter the narrative reason for separation as shown in Army Regulation 635-5-1 (SPD Codes) based on the regulatory or other authority.

17.  Army Regulation 635-5-1 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 identifies SPD code "KFS" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The SPD/RE Code Cross Reference Table in effect at the time stipulates that an RE code of "3" will be assigned to members separated with an SPD code of "KFS."

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend his under other than honorable conditions discharge should be upgraded and the separation authority, SPD and RE codes, and narrative reason for his separation should be changed to secretarial plenary authority because the applicant had prior honorable service in the NYARNG, he was not properly advised of the charges against him, he was denied due process during the separation process, and he has sought to improve himself since his discharge.

2.  Records show the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.

	a.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

		(1)  Records show the applicant was informed of the charge against him, he was advised of his rights, and he waived his right to have a lawyer present while discussing the offense.

		(2)  Records also show the applicant consulted with legal counsel prior to submitting his request for discharge in lieu of court-martial.

		(3)  Further, the applicant indicated he understood that by submitting his request for discharge, he acknowledged his understanding of the offense charged and that he was guilty of the charge against him.

	b.  The evidence of record shows that the separation authority, separation code, and RE code were correctly entered on the applicant's DD Form 214 in accordance with governing Army regulations.

	c.  The evidence of record also shows the applicant was on excess leave at the time of his discharge; therefore, he was not available to sign his DD Form 214.  As a result, his DD Form 214 appropriately reflects the entry "Soldier Not Available to Sign."

3.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  The applicant was AWOL for a total of 295 days (almost 10 months), he completed less than 11 months of his 4-year active duty obligation, and he elected to request discharge in lieu of being court-martialed.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or a general discharge.

5.  The applicant's contentions regarding his honorable service in the NYARNG and post-service achievements and conduct were considered.  However, after a thorough review and considering the reason for which he was discharged, his prior honorable service and post-service conduct provides an insufficient basis for upgrading his discharge.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request 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 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)                                         AR20130006527



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ABCMR Record of Proceedings (cont)                                         AR20130006527



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