IN THE CASE OF:	   

		BOARD DATE:	  6 October 2016

		DOCKET NUMBER:  AR20150002728 


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 (UOTHC) discharge and that his reentry eligibility (RE) code be changed.

2.  The applicant states he would like to redeem himself and enlist in the Air National Guard to make his life right.  He knows what he did was wrong but at the time did not know how wrong it was.  Everyone deserves a second chance.   He turned himself in before the desertion date and wanted to return to the Army but is now too old.  He would like to enlist and would be willing to serve overseas and fight.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 8 October 1997.  

3.  He was absent without leave (AWOL) from 5 January 1998 through 9 February 1998, 35 days.

4.  Upon return to military control court-martial charges were preferred for the period of AWOL.

5.  On 18 February 1998, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he if he were found guilty of the charge or a lesser included charge, he could be discharged with a punitive discharge and, if his request was accepted, he could receive a discharge UOTHC and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  
6.  On 14 May 1998, the court-martial convening authority approved the applicant's request for discharge in lieu of trial by court-martial.  He dismissed the court-martial charges and directed the applicant be reduced to the lowest enlisted grade and discharged with a UOTHC Discharge Certificate.

7.  The applicant was discharged accordingly on 19 June 1998.  His DD Form 214 shows he had 7 months and 6 days of creditable service with 35 days of lost time lost time shown as "19980105-19980209."  He is not shown to have received any awards or decorations.  He received a separation code of KFS and an RE Code of 3.

8.  There is no indication the applicant applied for review of his discharge by the Army Discharge Review Board within its 15-year statutory limit.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides the following:


	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty. 

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  

10.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities, reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states that SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, discharge for the good of the service in lieu of trial by court-martial.  The SPD/RE Code Cross Reference Table included in the regulation establishes RE-3 as the proper code to assign to members separated with SPD code KFS. 

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant has not provided and the record does not contain any evidence of any mitigating factors warranting a granting of 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)                                         AR20150002728



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ABCMR Record of Proceedings (cont)                                         AR20150002728



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