IN THE CASE OF:	  

		BOARD DATE:	  7 January 2014 

		DOCKET NUMBER:  AR20130008202 


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 correction of item 28 (Narrative Reason for Separation of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show something other than "in lieu of trial by court-martial."

2.  The applicant states the character of his discharge was upgraded due to his honorable service.  He believes the reason for his discharge, in lieu of trial by court-martial, should therefore be deleted.

3.  The applicant provides his DD Form 214 and DD Form 215 (Correction to DD Form 214).

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.  Having had prior active and Reserve service, the applicant enlisted in the Regular Army on 14 June 2001.  He was assigned to the 9th Battalion, 101st Aviation Regiment, Fort Campbell, KY.

3.  His record is void of the specific facts and circumstances surrounding his discharge processing.  However, the available record shows on an unknown date court-martial charges were preferred against him for one specification of fraudulent separation.  

4.  After consulting with legal counsel, he subsequently submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.

5.  On 14 July 2004, the separation authority approved the applicant's request for a discharge in lieu of trial by court-martial and directed the issuance of an under other than honorable conditions discharge.   On 16 July 2004, he was discharged accordingly.  He completed 3 years, 1 month, and 3 days of net active service during this period of service and had a total of 6 years, 5 months, and 16 days of net active service.

6.  The DD Form 214 he was issued for this period of service shows he was discharged in the rank of private/E-1 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  Item 26 (Separation Code) of this form contains the entry "KFS" and item 28 contains the entry "in lieu of trial by court-martial."  

7.  On 21 September 2005, he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his under other than honorable conditions discharge to a general discharge.  On 7 April 2006, the ADRB determined the characterization of his service was too harsh based on the overall length and quality of his service and voted to grant relief in the form of an upgrade to a general, under honorable conditions discharge with restoration to the rank/grade of private first class (PFC)/E-3.  However, the ADRB determined the reason for his discharge was both proper and equitable and voted not to change it.

8.  As a result, he was issued a new DD Form 214 that shows he was discharged on 16 July 2004 in the rank of PFC under the provisions of Army Regulation
635-200, chapter 10, with an under honorable conditions characterization of service.  The entries for item 26 and item 28 remained the same as on his original DD Form 214.



9.  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.  A discharge under other than honorable conditions is normally considered appropriate.

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, the SPD codes to be entered on the DD Form 214 and the corresponding narrative reason for separation.  It states the SPD code of KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10 and "in lieu of trial by court-martial" is the corresponding narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record confirms court-martial charges were preferred against the applicant for an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  He subsequently voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.  He was discharged accordingly on 16 July 2004.

2.  The evidence of record also confirms the ADRB determined the characterization of his service was too harsh based on the overall length and quality of his service and as such, warranted upgrade of his characterization of service to under honorable conditions.  However, the ADRB also determined his reason for discharge was fully supported and voted not to change it.

3.  His narrative reason for discharge was assigned based on the fact that he was discharged under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial.  Absent his request for discharge in lieu of trial by court-martial, there was no fundamental reason to process him for discharge at that time.  The only valid narrative reason for separation permitted under that chapter is "in lieu of trial by court-martial" which is properly reflected on his DD Form 214.

4.  In view of the foregoing, he is not entitled to 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)                                         AR20130008202





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ABCMR Record of Proceedings (cont)                                         AR20130008202



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