IN THE CASE OF:	   

		BOARD DATE:	  16 July 2015

		DOCKET NUMBER:  AR20140020969 


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:

The applicant defers his request and evidence to counsel.  He also requests a personal appearance. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions discharge to fully honorable and correction of the following:

* Item 25 (Separation Authority) from chapter 10, Army Regulation (AR) 635-200 (Personnel Separations) to chapter 5, AR 635-200, (Separation for the Convenience of the Government)
* Item 27 (Reentry (RE) code from RE-4 to RE-1
* Item 28 (Narrative Reason for Separation) from "Misconduct, minor infractions” to Secretarial Authority 

2.  Counsel states, in effect: 

* the applicant was not properly counseled concerning the legal ramifications of a chapter 10 discharge; therefore, he was denied due process
* the applicant does not recollect a charge sheet, explanation of the maximum penalties of the offenses charged, or speaking to an active duty defense counsel on this matter
* likewise, the applicant does not recall any explanation of the chapter 10 process or signing a chapter 10 document
* the chapter 10 requires charges, referral of charges, consult with trial defense, basically following the format specified in the regulation
* an under other than honorable conditions discharge is punitive in nature; therefore, safeguards and precautions should be taken to afford the member due process

3.  Counsel provides: 

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Applicant's self-authored statement
* Letter from the National Personnel Records Center
* DA Form 2-1 (Personnel Qualification Record)
* Letter of participation in adult education
* Adult High School Transcripts
* Certificate of Training
* Immunization Record
* Education Development Record
* Enlistment Report of Medical History

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's records, consisting of his DA Form 201 (Military Personnel Records Jacket) (also known as the 201 file) show he enlisted in the U.S. Army Reserve under the delayed entry program (DEP) on 29 September 1982.  He was discharged from the DEP on 13 June 1983 and subsequently enlisted in the Regular Army (RA) on 14 June 1983. 

3.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 16P (Air Defense Artillery (ADA) Chaparral Missile Crewmember). 

4.  Following MOS training, he served in Germany from on or about 18 October 1983 to 15 October 1985.  He was assigned to C Battery, 3rd Battalion, 67th ADA. 

5.  His DA Form 2-1 shows while in Germany, he was promoted to the rank/pay grade of private first class (PFC)/E-3 on 1 April 1984.  It also shows he was reduced to the rank of private (PVT)/E-1 on 29 March 1985.  The nature of his reduction is not available for review with this case.  

6.  Following promotion back to the rank of FC/E-3 in October 1985 and completion of his Germany tour, he was reassigned to C Battery, 4th Battalion, 1st ADA, Fort Bliss, TX. 

7.  On 3 February 1986, he departed his unit in an absent without leave status.  He returned to military control on 3 March 1986. 

8.  On 20 March 1986, at 0735 hours, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself without authority from 3 February to 3 March 1986.  His punishment consisted of a reduction to private two (PV2)/E-2 and extra duty and restriction. 

9.  Also on 20 March 1986, at 1323 hours, he accepted NJP under the provisions of Article 15 of the UCMJ for missing movement through neglect.  His punishment consisted of a reduction to PVT/E-1 (suspended for 60 days) and a suspended forfeiture of pay. 

10.  On 20 May 1986, he was promoted to PFC/E-3 and on 16 August 1986, he was reassigned to C Battery, 5th Battalion, 62nd ADA, another unit at Fort Bliss, TX.  He was promoted to specialist four (SP4)/E-4 on 21 November 1986. 

11.  On 19 February 1987, he accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty and leaving his appointed place of duty without authority.  His punishment consisted of a reduction to PFC/E-3 and extra duty and restriction. 

12.  On 1 April 1987, the applicant's commander preferred court-martial charges against him for:

* Charge I, Article 86, UCMJ, five specifications of failing to go at the time prescribed to his appointed place of duty and two specifications of absenting himself from his unit from 17 to 18 March 1987 and from 19 to 20 March 1987
* Charge II, Article 90, three specifications of willfully disobeying a lawful order or command
* Charge III, one specification of wrongfully appropriating a 1981 Honda, the property of another Soldier, by wrongfully withholding said vehicle

13.  His battery, battalion, and brigade commanders recommended trial by a special court-martial empowered to impose a bad conduct discharge.  

14.  On 3 April 1987, the applicant consulted with legal counsel (Captain, Judge Advocate General, Defense Counsel) and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

	a.  he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person;

	b.  he understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge;

	c.  he understood if his discharge request was approved, he may be discharged under other than honorable conditions and may receive an Under Other Than Honorable Conditions Discharge Certificate; 

	d.  he understood if his discharge request was approved, 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; 

	e.  he understood that under no circumstances did he desire further rehabilitation or to perform further military service; and 

	f.  he elected not to submit a statement on his own behalf.  

15.  His chain of command, including the immediate (battery), intermediate (battalion), and senior (brigade) commanders recommended approval of the discharge action.  The immediate commander stated the applicant failed to adjust to Army standards while the intermediate commander stated the seriousness of the offenses and the applicant's sporadic performance warranted such discharge and characterization of service. 

16.  On 9 April 1987, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade.  On 22 April 1987, the applicant was discharged accordingly.

17.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 3 years, 9 months, and 11 days of creditable active service and he had 30 days of lost time from 3 February 1986 to 2 March 1986.  His DD Form 214 also shows he was awarded or authorized the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.  It further shows in: 

* Item 25 -Chapter 10, AR 635-200
* Item 26 (Separation Code) - KFS
* Item 27- RE-4
* Item 28 - For the Good of the Service-In Lieu of Court-Martial 

18.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

19.  He provides: 

	a.  His immunization and education development records, enlistment report of medical history, transcripts and letter of participation in adult education, a letter from the National Personnel Records Center, and a certificate of training showing completion of the U.S. Army Europe Command Language Program; 

	b.  A self-authored affidavit in which he describes his family's connections to the military, his reasons for entering the Army, his service while in the Army, his achievements and accomplishments, and his awards and decorations.  He also reiterates that he does not recall ever being shown a charge sheet, or anyone explaining the chapter 10 to him.  He admits getting in some trouble but nothing that rises to a chapter 10 discharge.  He also highlights his post-service professional accomplishments.  

20.  AR 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 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.

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  It 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.

	b.  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.

21.  AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve.  Table 3-1 included a list of the RA RE codes:

	a.  RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army.  They are qualified for enlistment if all other criteria are met.

	b.  RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  They are ineligible for enlistment unless a waiver is granted.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

22.  AR 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 AR 635-200, chapter 10, by reason of in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of KFS.
23.  AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice and/or direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  The available evidence clearly shows the applicant violated the UCMJ and that is why court-martial charges were preferred against him.  It also clearly shows he was not denied any due process:  He did in fact consult with counsel who explained to him his rights, the elements of the offenses for which he was charged, the maximum punishments of his offenses, and the implications of choosing a chapter 10.  Only then did he voluntarily request the chapter 10 and acknowledged that he was making this request of his own free will.  

4.  The applicant did not receive a punitive discharge as counsel contends.  A punitive discharge can only be imposed by a court-martial.  A bad conduct or a dishonorable discharge (adjudged by a court-martial) is an example of a punitive discharge.  A chapter 10 is not a punitive discharge; it is an administrative discharge.  Additionally, the applicant was not discharged for misconduct as counsel contends.  Such discharge would have been under chapter 14 of AR 635-200; not chapter 10 of AR 635-200.  In any case, the applicant voluntarily chose discharge in lieu of a court-martial that could have adjudged a bad conduct discharge or a dishonorable discharge.  He could have elected trial by a court-martial if he believed he was innocent of the charges.

5.  The applicant's discharge occurred in 1987, nearly 30 years ago.  It is reasonable that the applicant does not remember all that happened then.  Nonetheless, his 201 file contains at least three Article 15s and his complete separation packet, including the charge sheet, his voluntary request, the chain of command's recommendations, and the separation authority's decision.  

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading his discharge to either an honorable or a general discharge.

7.  The evidence of record further confirms that his narrative reason for separation and separation code were assigned based on the fact that he was discharged under the provisions of AR 635-200, chapter 10, in lieu of trial by court-martial.  Absent his offenses, there would have been no reason to prefer court-martial charges against him, and absent the court-martial charges, there would have been no reason to process his discharge.  

8.  The narrative reason and separation code associated with this type of discharge are "In Lieu of Trial by Court-Martial" and "KFS."  Additionally, the appropriate RE code associated with this reason and separation code is RE-4.  Therefore, he received the appropriate reason and RE code associated with his discharge and there is no basis for the requested relief.

9.  The applicant and his counsel have not shown an error or an injustice that require correction.  In view of the foregoing, there is no basis to grant him 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)                                         AR20140020969



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ABCMR Record of Proceedings (cont)                                         AR20140020969



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