RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011008 


	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. Gerard W. Schwartz

Acting Director

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Powers

Chairperson

Mr. Paul Smith

Member

Mr. Jerome Pionk

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 item 8a (Last Duty Assignment and Major Command) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show Korea; that item 11 (Primary Specialty) be corrected to show 95B (military policeman); that items 25 (Separation Authority) and 26 (Separation Code) be corrected; that item 28 (Narrative Reason for Separation) be corrected to show “Voluntary Administrative” or “Early Release Other”; and that item 29 (Dates of Time Lost During This Period) be corrected to show less than 30 days.  

2.  The applicant states, in effect, that his discharge was based on Army Regulation 635-200, chapter 10.  He contends that his discharge may have been improper because he did not meet all of the necessary criteria listed in paragraph 10-7 of Army Regulation 635-200.  He states that his separation authority should be changed because he attempted to surrender himself before being absent without leave (AWOL) more than 30 days and that he would not have met the criteria for paragraph 10-7 of Army Regulation 635-200 if he would have been reported as being in military control when he attempted to turn himself in the first time.  He contends that he was young, immature, and that he made a poor decision when he failed to return to his unit on time on 14 August 1995.  He states that he attempted to surrender himself at the Military Police station at Fort Knox, Kentucky during the first week in September 1995; however, since he was only absent without leave (AWOL) for a few weeks the sergeant advised him to go home and wait until he was AWOL from his unit for more than 30 days.  He followed the sergeant’s orders and surrendered himself after being AWOL for 33 days.  He further contends that he wants to enlist in the Army National Guard or the U.S. Army Reserve and his lost time is making it difficult.   

3.  The applicant provides a statement of support, dated 18 December 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred on 
7 February 1996.  The application submitted in this case is dated 28 July 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 on 3 October 1994 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty (MOS) 95B.  He served in MOS 95B in Korea from 11 February 1995 through 13 August 1995.  He went AWOL on 14 August 1995 and surrendered to military authorities at Fort Knox, Kentucky on 18 September 1995.  

4.  On 21 September 1995, charges were preferred against the applicant for the AWOL period.

5.  On 21 September 1995, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an other than honorable discharge.  He elected not to make a statement in his own behalf. 

6.  Orders, dated 26 October 1995, show the applicant was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky.    

7.  On 15 December 1995, Lieutenant Colonel W___, the Acting Garrison Commander, approved the applicant’s request and directed that he be furnished a discharge under other than honorable conditions.

8.  Headquarters, U.S. Army Personnel Control Facility Orders 11-5, dated 
11 January 1996, show the applicant was awarded MOS 11B1O effective 
15 December 1995 and MOS 95B1O was withdrawn.

9.  On 7 February 1996, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

10.  Item 8a on the applicant’s DD Form 214 shows the entry, “PERSONNEL CONTROL FACITLITY (sic) TRADOC [Training and Doctrine Command] .”  Item 11 on his DD Form 214 shows the entry, “11B00000 INFANTRYMAN 0 YRS [Years] 2 MOS [Months] FOLLOWS.”   Item 25 on his DD Form 214 shows the entry, “AR [Army Regulation] 635-200, CHAPT [chapter] 10.”  Item 26 on his DD Form 214 shows the entry, “KFS.”  Item 28 on his DD Form 214 shows the entry, “IN LIEU OF TRIAL BY COURT-MARTIAL.”  Item 29 on his DD Form 214 shows the entry, “UNDER 10 USC 972: 950814-950917.” 

11.  In support of his claim, the applicant provided a statement, dated 
18 December 2005, from a woman who accompanied him when he tried to turn himself in to military authorities during the first week in September 1995.  She attests that the applicant was turned away because he was not on the AWOL list and that he was told to return after being AWOL for 30 days.

12.  On 12 April 2002, the Army Discharge Review Board upgraded the applicant’s discharge to a general discharge.  He stated that the recruiter explained his military occupational specialty incorrectly, that he was given a description of his job to a police officer not an infantryman, that his discharge from active duty was explained incorrectly by the Judge Advocate General personnel, and that he was not given any counsel or representation to explain that his discharge would hurt his future career in law enforcement.   

13.  Paragraph 10-7 (Discharge Authority) of Army Regulation 635-200 states, in pertinent part, that the separation authority will be a commander exercising general court-martial jurisdiction or higher authority.  However, authority to approve discharges in cases in which the Soldier has been AWOL for more than 30 day may be delegated to the commander exercising special court-martial convening authority over the Soldier.    

14.  Army Regulation 635-5-1 (Separation Program Designator 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, in effect at the time, states the reason for discharge based on separation code “KFS” is “In lieu of trial by court-martial” and the regulatory authority is Army Regulation 635-200, chapter 10. 

DISCUSSION AND CONCLUSIONS:

1.  Although evidence of record shows the applicant served in Korea, evidence of record also shows his last duty assignment was the Special Processing Company, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky.  Therefore, there is no basis for amending item 8a on his DD Form 214.    

2.  Evidence of record shows the applicant was awarded MOS 11B effective 
15 December 1995 and MOS 95B was withdrawn.  Therefore, there is no basis for amending item 11 on his DD Form 214.

3.  The applicant’s contentions that his separation authority should be changed because he attempted to surrender himself before being AWOL more than 30 days and that he would not have met the criteria for paragraph 10-7 of Army Regulation 635-200 if he would have been reported as being in military control when he attempted to turn himself in the first time were noted.  However, he had an opportunity when he requested discharge to explain the circumstances of his alleged attempt to return to military control before he was AWOL for 30 days but he did not do so.  He did not mention these circumstances when he applied to the ADRB.  The first evidence he submitted to support this contention is dated 2005, 10 years after he separated.  Paragraph 10-7 of Army Regulation 635-200 merely gives the separation authority for a discharge in lieu of trial by court-martial. 

4.  Even if the applicant had turned himself in to military control before being AWOL for 30 days, he requested discharge.  There is no evidence to show the general court-martial jurisdiction would not have approved a request for discharge in lieu of court-martial.

5.  The applicant’s separation authority, separation code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for amending items 25, 26, and 28 on his DD Form 214.

6.  Evidence of record shows the applicant was AWOL from 14 August 1995 through 17 September 1995.  Therefore, there is no basis for amending item 29 on his DD Form 214. 

7.  Records show the applicant should have discovered the alleged errors now under consideration on 7 February 1996; therefore, the time for the applicant to file a request for correction of any error expired on 6 February 1999.  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

WP____  _PS_____  __JP____  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 Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20060011008
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.
100.0500
3.
110.0200
4.

5.

6.