RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2006
      DOCKET NUMBER:  AR20060005915


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Crain                 |     |Chairperson          |
|     |Ms. Alice Muellerweiss            |     |Member               |
|     |Mr. Donald Lewy                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his separation code and his Reentry
Eligibility (RE) code be changed.

2.  The applicant states that his wife had just had their son and she left
him with the two babies.  He states he submitted a request to the chaplain
for an honorable discharge and his request was granted.  His wife called
him from California in panic and he left a week before his discharge.  The
doctors now say [his wife’s panic] was due to postpartum.  He would like
more than anything to reenlist.  He states, in effect, that this type of
discharge on his record is bothering him and he needs to rejoin to serve
his country and succeed.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); his son’s birth certificate; and
documentation on postpartum illness.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 23 August 1989.  The application submitted in this case is
dated 26 April 2006.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the Regular Army on 3 June 1987.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 11B (Infantryman).  He was assigned to
Hawaii in September 1987.

4.  In January 1988, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for writing a bad
check.  The Record of Proceedings under Article 15, UCMJ is not available.


5.  He was advanced to private first class on 1 July 1988.

6.  The applicant provided a birth certificate which shows his son was born
on 22 August 1988.

7.  In October 1988, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for showing disrespect.  The Record of Proceedings under
Article 15, UCMJ is not available.

8.  On 17 January 1989, charges were preferred against the applicant for
being absent without leave (AWOL) from 5 December 1988 to 5 January 1989.

9.  On 17 January 1989, the applicant consulted with legal counsel and
voluntarily requested discharge for the good of the service in lieu of
trial by
court-martial under the provisions of Army Regulation 635-200, chapter 10.
In doing so, he admitted guilt to the offense charged and acknowledged that
he might encounter substantial prejudice in civilian life and that he might
be ineligible for many or all benefits administered by the Veterans Affairs
if an under other than honorable conditions (UOTHC) discharge was issued.
The applicant did not submit statements in his own behalf.

10.  On 3 August 1989, the separation authority approved the discharge with
an UOTHC discharge.

11.  The applicant was discharged on 23 August 1989.  He completed 2 years,
1 month, and 21 days of active military service with 31 days of lost time.
He was discharged with a separation code of "KFS" (For the Good of the
Service – In Lieu of Trial by Court-Martial) and issued RE codes of RE-3,
RE-3B, and RE-3C.

12.  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,
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.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)
prescribes the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the separation program designators to be used for these stated
reasons.  The regulation shows that the separation program designator “KFS”
as shown on the applicant’s DD Form 214 specifies the narrative reason for
discharge as “For the Good of the Service – In Lieu of Trial by Court-
Martial” and that the authority for discharge under this separation program
designator is “AR 635-200, Chapter 10.”

14.  Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5
(Separation Documents), in effect, at the time, established RE code 3 as
the proper reentry code to assign to Soldiers separated under the
provisions of Army Regulation 635-200, Chapter 10 for the good of the
service.

15.  RE–3 applies to persons not qualified for continued Army service, but
the disqualification is waivable.

16.  RE-3B applied to persons who had lost time during their last period of
service.

17.  RE-3C applied to persons separated from their last period of service
who did not meet the reentry grade and service criteria of Army Regulation
601-210.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service, to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress.

2.  The applicant's DD Form 214 shows the applicant was discharged from
active duty with a separation code of "KFS" (For the Good of the Service –
In Lieu of Trial by Court-Martial) and was assigned RE codes of RE-3, RE-
3B, and RE-3C in accordance with the governing regulation in effect at the
time.

3.  The applicant's contentions have been noted.  However, he provided no
evidence to show his discharge had been approved prior to his departing
AWOL. He was afforded the opportunity to submit a statement at the time of
his separation to explain his AWOL and he failed to do so.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the separation code and the reentry code issued to
him were administratively incorrect, in error, or unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 August 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 August 1992.  The applicant did not file within the
3-year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

WC______  AM______  DL______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  William Crain_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005915                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061130                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0300                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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