APPLICANT REQUESTS: In effect, the applicant requests that his discharge be upgraded to honorable. He states that his uncharacterized discharge, with the resultant separation code of KFS, and the reenlistment code of RE-3B, are unjust to him, and prejudice his present and future employment.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted in the Army Reserve for eight years on 16 April 1985 under a split training option. He was ordered to initial active duty for training (IADT) and reported to Fort Dix, New Jersey for basic training on
9 May 1985. He completed basic training and his tour was terminated on 12 July 1985.
The applicant was ordered to initial active duty for training for advanced individual training with a reporting date to Fort Sam Houston, Texas of 26 May 1986. He failed to report for training and was determined to be AWOL. The applicant surrendered to military authorities at Fort Dix on 10 July 1987 and was assigned to the Fort Dix personnel confinement facility.
On 14 July 1987 the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial. He stated that he understood the elements of the offense charged against him and was guilty of the charge or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. He stated that under no circumstances did he desire further rehabilitation, and had no desire to perform further military service. The applicant stated that he understood the nature and consequences of the other than honorable conditions discharge that he might receive. He declined to submit a statement in his own behalf.
On 1 August 1987 the separation authority approved his request and directed that he receive an entry level separation. The applicant was discharged at Fort Dix on
27 August 1987 for the good of the service in lieu of court-martial. The character of his service was uncharacterized, his separation code was KFS, and his reenlistment code, RE 3-3b. He had 3 months and 21 days of active service and 410 days of lost time.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, 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 discharge under other than honorable conditions is normally considered appropriate.
Paragraph 3-9 of the regulation specifies that soldiers who are within the first 180 days of their enlistments when separation processing is started will normally receive an uncharacterized entry level separation. The only authorized exceptions are in those cases where an under other than honorable conditions discharge is authorized and or warranted or when the Secretary of the Army determines on a case by case basis that an honorable discharge is warranted by unusual circumstances involving the individual's personal conduct and performance of duty. However, such honorable discharges may be applied only in cases involving changes in service obligation, convenience of the Government and secretarial plenary authority.
The glossary in the aforementioned regulation defines entry level status for Reserve soldiers for soldiers ordered to IADT for the split or alternate training option-90 days after beginning Phase II (AIT) (Soldiers completing Phase I (Basic) remain in entry level status until 90 days after beginning Phase II).
Army Regulation 601-210, then in effect, prescribes eligibility criteria, policies, and procedures for enlistment in the Army. Paragraph 3-8 of that regulation describes the various reenlistment (RE) codes, and states that RE-3B applies to persons who have lost time during their last period of service. They are ineligible for enlistment unless a waiver is granted.
Army Regulation 635-5-1, then in effect, lists the separation coded designators, the authorities, and the reasons for separation. SPD Code KFS pertains to a soldier separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on
27 August 1987, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 27 August 1990.
The application is dated 13 March 1996 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to
conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider
Acting Director
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