IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20140020908 


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 discharge under other than honorable conditions (UOTHC) to honorable.  He also requests amendment of his separation code and narrative reason for separation.

2.  The applicant states:

	a.  His first 3 1/2 years of service were honorable without disciplinary action.  At his final duty station his first sergeant singled him out.  The first sergeant would give him unrealistic tasks ensuring his failure and he was disciplined accordingly.  His platoon sergeant and squad leader would not assist him.  His first sergeant convinced him he should accept early discharge to avoid trial by court-martial.

	b.  He never signed his DD Form 214 (Certificate of Release or Discharge from Active Duty) because he wanted to finish his contract.  At the time he didn't realize he was receiving a discharge UOTHC.  He just filed his DD Form 214 without reading it upon receiving it in the mail.

	c.  Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge.  His record of promotions showed he was generally a good service member.  He was so close (under 6 months) to finishing his tour that it was unfair to give him a bad discharge.

	d.  He has been a good citizen since his discharge.  He regularly attends church services, works at the local food pantry, and is currently working toward his general education diploma.

3.  The applicant provides a copy of his 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.  The applicant enlisted in the Regular Army on 19 August 1980 for a period of 4 years.  He completed his training and was awarded military occupational specialty 16E (Hawk fire control crewmember).

3.  In December 1982, nonjudicial punishment was imposed against him for wrongful appropriation of a moped.

4.  His records show he was absent without leave from 10 June 1983 until he surrendered to military authorities on 20 December 1983.

5.  His records are void of the specific facts and circumstances surrounding his final discharge action.  However, his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 1 February 1984 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 2 years, 11 months, and 3 days of creditable active service with 193 days of lost time.  His service was characterized as UOTHC.

6.  His DD Form 214 shows:

* item 25 (Separation Authority) – Army Regulation 635-200, chapter 10
* item 26 (Separation Code) – KFS
* item 28 (Narrative Reason for Separation) – for the good of the service in lieu of trial by court-martial

7.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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.  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.

	c.  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.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD code KFS applies to Soldiers voluntarily discharged in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has been a good citizen since his discharge.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  His records are void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.

3.  Discharges 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 is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his final discharge accurately reflects his overall record of service during the period under review.

4.  It also appears he was assigned the appropriate SPD code and narrative reason for separation.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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 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)                                         AR20140020908



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ABCMR Record of Proceedings (cont)                                         AR20140020908



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