RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2007
	DOCKET NUMBER:  AR20070003943 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Bernard P. Ingold

Chairperson

Mr. Thomas M. Ray

Member

Mr. Gerald J. Purcell

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 under other than honorable conditions discharge (UOTHC) and Separation Program Designator (SPD) Code of KFS be upgraded. 

2.  The applicant states, in effect, that his UOTHC discharge and SPD code of KFS are unjust and it is causing him to be ineligible to receive veteran's benefits for his Post-Traumatic Stress Disorder (PTSD) from the Department of Veterans Affairs (DVA).  He states that his PTSD was due to combat experience in Vietnam during his first enlistment.  He states that his attorney informed him not to go through a court-martial.  He feels it was unjust and he was not afforded the appropriate attorney representation.  He would like to have his discharge upgraded to a general under honorable conditions and have his SPD changed, so he can receive benefits from the DVA.

3.  The applicant does not provide any additional documentation.

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's military records show that he first entered active duty on  
15 September 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty  
72C2O (Telecommunication Switchboard Operator).  He was honorably released from active duty after serving 2 years, 6 months, and 17 days of active service.

3.  His military records further show that he entered active duty 7 January 1987.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11C1O (Indirect Fire Infantryman).  His highest pay grade held was sergeant/pay grade E-5.

4.  His military records show that he served with Headquarters and Headquarters Company (HHC), 1st Battalion, 34th Armor, Fort Riley, Kansas.

5.  On 20 March 1992, the applicant received an administrative reprimand for testing positive for cocaine.  On 24 March 1992, the applicant acknowledged and understood the unfavorable action presented against him and understood his right to appeal.  He elected not to make any statements on his own behalf.

6.  The applicant's discharge packet was not included in his records.  However, the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was reduced to private/pay grade E-1 and was discharged under other than honorable conditions for the good of the service in lieu of court-martial on 15 July 1992.  He was assigned a SPD code of KFS and a Reentry (RE) Code of RE-4.  He had completed a total of 5 years, 6 months, and 9 days of Net Active Service This Period.

7.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table
2-3, states that the SPD code KFS denotes discharge for the good of the service in lieu of court-martial.

8.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table shows that an SPD code of KFS is assigned an RE code of RE-4.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge be upgraded and his SPD Code of KFS be changed so that he can be eligible to receive veteran's benefits for his PTSD.

2.  Without the applicant's discharge packet, it must be presumed that what the Army did was correct.  The burden to proof otherwise lies with the applicant.

3.  The applicant was assigned the proper SPD code of KFS.  The code remains a valid code.  Since the applicant was properly discharged, there is no reason to change his SPD code.

4.  The applicant statement that his PTSD was due to combat experience in Vietnam during his first enlistment and his attorney informed him not to go through a court-martial is noted.  However, these matters of mitigation are not sufficient to warrant a change to a properly issued discharge.  

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the DVA.

6.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement; therefore, he is not entitled to an honorable or a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___bpi__  ___gjp___  ____tmr__  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.




_________Bernard P. Ingold_________
          CHAIRPERSON




INDEX

CASE ID
AR20070003943
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070830
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.