IN THE CASE OF:  	  

		BOARD DATE:  13 October 2015  	  

		DOCKET NUMBER:  AR20150003392 


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:

	a.  an upgrade of his discharge under other than honorable conditions (UOTHC) to a general discharge and

	b.  amendment of his narrative reason for separation.

2.  The applicant states:

* it's been almost 10 years since his discharge
* he is not the same person he was then

3.  The applicant provides no additional evidence.

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 2 June 2004 for a period of 4 years.  He completed his training and was awarded military occupational specialty 91W (health care specialist).

3.  On 25 July 2005, charges were preferred against him for the following offenses:

* being absent without leave (AWOL) from 23 May 2005 to 1 June 2005, from 14 June 2005 to 24 June 2005, and from 24 June to 11 July 2005
* disobeying a lawful order
* using marijuana

4.  He consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.  He elected not to make a statement in his own behalf.

5.  On 1 August 2005, the applicant's chain of command recommended approval of his request.

6.  The separation authority's action is not available for review.

7.  On 9 August 2005, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 1 month, and 2 days of creditable active service with 36 days of lost time.  His service was characterized as UOTHC.


8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:

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

9.  In March 2011, the Army Discharge Review Board denied his request for a discharge upgrade.

10.  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 UOTHC is normally considered appropriate.

	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.

11.  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.  Although the applicant contends it's been almost 10 years since he was discharged, the passage of time is normally not a basis for upgrading a discharge.  Each request is individually considered based on the evidence presented.

2.  His voluntary 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, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons for discharge were appropriate considering all the facts of the case.

4.  His record of service included drug abuse and 36 days of lost time.  As a result, his record of service was not satisfactory.  There is an insufficient evidentiary basis for granting the applicant a general discharge.

5.  His narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  There is no basis for granting the applicant's request to change his narrative reason for separation.

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)                                         AR20150003392



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ABCMR Record of Proceedings (cont)                                         AR20150003392



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