BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010212 


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 the following:

* an upgrade of his under other than honorable conditions discharge to an honorable or a general discharge
* amendment of the following items of his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* Item 25 (Separation Authority)
* Item 26 (Separation Code)
* Item 28 (Narrative Reason for Separation)
* Item 29 (Dates of Time Lost During This Period)

2.  The applicant states:

   a.  In effect, items 25, 26, 28, and 29 should be revised to eliminate references to "lost time" and to discharge in lieu of court-martial in accordance with the provisions of chapter 10, Army Regulations 635-200 (Personnel Separations – Enlisted Separations).  He believes that the character and quality of his service from 12 November 1988 through 6 November 1990, during which time he was stationed in the U.S. Army Europe, was exemplary as evident of his three awards of the Army Achievement Medal during this period.  Following his return to the Continental United States (Fort Stewart, GA), he experienced personal problems and mental health issues that led to him going absent without leave (AWOL) on 10 May 1991.  As a result he received an under other than honorable conditions discharge in lieu of court-martial.  He suggests that the quality of his service prior to the AWOL offense merits an honorable or general discharge.  He was not aware of the process for applying for an upgrade of his discharge until he was advised by a veteran service officer in December 2013.

   b.  He feels his life before joining the military was pretty good.  He had a loving family, a great support system, and plenty of good friends.  He decided to join the Army because he was inspired by his dad and uncles being in the Army.  He was very excited about being in the Army.  After completing advanced individual training he began to apply himself to be the best Soldier that he could be (his records should show all of his accomplishments).  

   c.  In 1989, his mind began taking him through changes when his parents divorced.  It was really difficult for him to deal with their separation.  He found himself doing more training and pushing himself in every way.  He couldn't find any one in the military to help him deal with his family's changes.  His uncles were the ones who encouraged him to look ahead.  His depression became apparent when his grandmother died in 1989.  That’s when his first AWOL offense occurred when he attended her memorial.  He was very close to his grandmother and it was very depressing.  He didn't think her death should have occurred.  Even today it continues to bother him when he thinks of how the military denied him to stay with his family after her death.

   d.  He paid for his behavior in 1989 and continued to try to be a good Soldier even after being hurt during training.  He did everything by the book.  He was already a short-timer and wasn't going to reenlist.  He attempted to explain to the first sergeant that he really needed some help.  They denied him the opportunity to go home to the lady who taught him about family, life, and living.  He was going crazy because of all he had done for his country and his request to go home was denied.  He even requested to be discharged before his expiration of term of service (ETS) date.  After his discharge he continued trying to be a good person, but now his life has become very difficult living with chronic body pain, especially in his feet, and always feeling sad and down and out.

3.  The applicant provides copies of the following:

* Permanent Orders (PO) Number 110-2
* PO Number 297-2
* DA Form 638 (Recommendation for Award of the Meritorious Service Medal and Below)
* DD Form 214
* seven character letters


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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant's military records show he enlisted in the Regular Army, in pay grade E-3, on 15 July 1988, for 4 years (ETS 11 July 1992).  He was awarded military occupational specialty 11M (fighting vehicle infantryman).  He was promoted to pay grade E-4 on 1 December 1989.

3.  His records contain and he provided a copy of PO Number 110-2, dated 21 April 1989, awarding him the Army Achievement Medal for meritorious achievement from 22 March to 9 April 1989.

4.  On 21 April 1989, his status was changed from emergency leave to AWOL.  On 24 April 1989, he returned to military control.

5.  His records also contain and he provided copies of the following:

* PO Number 297-2, dated 24 October 1989, awarding him the Army Achievement Medal with First Oak Leaf Cluster (OLC) for meritorious achievement on 22 August 1989
* DA Form 638, dated 17 September 1990, wherein he was recommended for award of the Army Achievement Medal with Second OLC for meritorious achievement on 19 June 1990; the award was approved by PO Number 261-6 on 18 September 1990

6.  On 10 May 1991, he was reported AWOL and on 9 June 1991 he was dropped from the rolls of his organization.  On 30 March 1993, he was apprehended by civil authorities and returned to military control.

7.  On 7 April 1993, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY.  The applicant was charged with one specification of being AWOL from 10 May 1991 through 30 March 1993.  On the same date court-martial charges were preferred against the applicant.

8.  On 7 April 1993, the applicant 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 of the procedures and rights available to him.  Following consultation with legal counsel, he 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 his request for discharge, he indicated/acknowledged:

* he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or an under other honorable conditions discharge
* understood if his request for discharge was accepted, he could be discharged under other than honorable conditions
* acknowledged he understood if his discharge request was 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
* acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf 
* if he desired a review of his discharge, he must apply to either the Army Discharge Review Board (ADRB) or the ABCMR and that act of consideration by either board did not imply that his discharge would be upgraded

9.  On 3 May 1993, the applicant's chain of command recommended approval of the applicant's discharge with an Under Other Than Honorable Discharge.  

10.  On 14 May 1993, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.
11.  He was discharged accordingly on 9 June 1993.  He was credited with completing 3 years and 2 days of active service and 693 days of time lost.  His service was characterized as under other than honorable conditions.  His
DD Form 214 lists in:

* Item 25 - Army Regulation 635-200, chapter 10
* Item 26 - KFS
* Item 28 - For the Good of the Service, In Lieu of Court-Martial
* Item 29 - Lost time from 21 to 23 April 1989 and from 10 May 1991 through 11 July 1992; Not Chargeable:  from 12 July 1992 through 29 March 1993

12.  Item 21 (Time Lost Under Section 972, Title 10, U.S. Code (USC) of his DA Form 2-1 (Personnel Qualification Record) shows the following:

* AWOL - 21 April 1989 through 23 April 1989 - 3 days
* AWOL - 5 May 1991 through 29 March 1993 – 690 days

13.  There is no evidence he applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

14.  He also provided copies of seven character letters, dated between April and June 2014, wherein the individuals attested to the applicant being a devoted father, valued family member, hard worker, and learning from his mistakes since his release from the military and prison.  The individuals stated their support for an upgrade of his discharge to an honorable discharge so that he could continue to strive to become a better man.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Under Other Than Honorable Conditions Discharge would normally be furnished to an individual who was discharged for the good of the service.
   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214.  It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty.  The regulation required the time lost during the current enlistment would be entered Items 21 and 27 of the DD Form 214.  The regulation stated:

   a.  Item 25 would list the separation authority.

   b.  Item 26 would list the proper separation program designator (SPD) representing the reason for separation.

   c.  Item 28 would list the reason for separation based on the regulatory or statutory authority.

   d.  Item 29 would list the total number of days lost under Title 10, USC, section 972, as well as time lost subsequent to normal ETS, that entry covered the entire period of service covered by the DD Form 214.  As indicated on the 
DA Form 2-1 (Personnel Qualification Record), time lost under Title 10, USC, section 972, was not creditable service for pay, retirement, or veteran's 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 was creditable.

17.  Title 10, USC, section 972, states (a) Enlisted Members Required To Make Up Time Lost. - An enlisted member of an armed force who - (1) deserts; (2) is absent from his organization, station, or duty for more than one day without proper authority, as determined by competent authority; (3) is confined by military or civilian authorities for more than one day in connection with a trial, whether before, during, or after the trial; or (4) is unable for more than one day, as determined by competent authority, to perform his duties because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his return to full duty, to serve for a period that, when added to the period that he served before his absence from duty, amounts to the term for which he was enlisted or inducted. 

18.  Army Regulation 635-5-1 (SPD Codes), in effect at the time, provided 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 stated the SPD code of "KFS" was applicable for Soldiers who are discharged under the provisions of Army Regulation 635-200, chapter 10, with the narrative reason of "For the Good of Service, In Lieu of Court-Martial."

DISCUSSION AND CONCLUSIONS:

1.  The applicant 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 by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an Under Other Than Honorable Conditions Discharge.  He also acknowledged that he understood that if he desired a review of his discharge, he must apply to either the ADRB or the ABCMR and that act of consideration by either board did not imply that his discharge would be upgraded.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his available military records contain no evidence which would entitle him to an upgrade of his under other than honorable conditions discharge.  The evidence shows his misconduct during his period of service sometime after May 1991 diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  With regard to amendment of items 25, 26, and 28 of his DD Form 214, the evidence shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  Absent his AWOL and referral of court-martial charges, there was no fundamental reason to process his voluntary separation.  The underlying reason for his discharge was his voluntary request in lieu of trial by a court-martial.  The only valid narrative reason for separation permitted under that paragraph is "For the Good of the Service - in Lieu of Court-Martial" and the appropriate separation code associated with this discharge is "KFS" which is correctly shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

5.  With regard to the lost time in item 29, the evidence shows he was AWOL from 21 to 23 April 1989 and from 10 May 1991 through 29 April 1993.  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.  Therefore, 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)                                         AR20140010212



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140010212



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1