RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	22 January 2008  
	DOCKET NUMBER:  AR20070009753 


	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.


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	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, in effect, an upgrade of his under other than honorable conditions discharge to a general (under honorable) discharge. 

2.  The applicant states, in effect, that Item 24 (Character of Service), of his DD Form 214, Certificate of Release or Discharge from Active Duty, should be corrected since it does not correspond to the RE (Reentry) Code.  The applicant requests that the character of his service be changed to read, "under honorable conditions."  The applicant summarizes that the character of service must match the separation code, the narrative reason for separation, and the reentry code. 

3.  In support of his request, the applicant provides a copy of his DD Form 214; a copy of a Standard Form 180, Request Pertaining to Military Records; and a reply he received from the National Personnel Records Center, dated 25 June 2007, pertinent to his records.

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 record shows he enlisted in the US Army Reserve, Delayed Enlistment Program, on 7 November 1988.  On 3 August 1989, he enlisted in the Regular Army for a period of 4 years.  He successfully completed his basic combat and his advanced individual training at Fort Benning, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty 11B, Infantryman.

3.  On 13 January 1990, the applicant was reassigned to Fort Campbell, Kentucky, as a first duty station.  

4.  The applicant's records document the highest rank and pay grade he held on active duty was Private First Class, E-3.  The record shows he achieved this rank and pay grade on 1 July 1990.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

5.  On 19 July 1990, the applicant's duty status was changed from present for duty to absent without leave (AWOL), effective 2330 hours, 16 July 1990.

6.  On 30 August 1990, the applicant's duty status was changed from AWOL to dropped from the rolls (DFR) of the organization, effective 0600 hours, 15 August 1990.

7.  On 21 August 1990, the applicant's duty status was changed from DFR to attached/present for duty at the Special Processing Company, Fort Knox, Kentucky, effective 1130 hours, 17 August 1990.  The applicant had surrendered to military authorities at Fort McCoy, Wisconsin, on 17 August 1990.

8.  On 18 August 1990, the applicant waived a separation medical examination.  He stated he did not want a physical examination prior to his discharge. 

9.  On 20 August 1990, charges were preferred against the applicant for absenting himself without authority for the period 16 July 1990 to 17 August 1990.

10.  On 20 August 1990, the applicant voluntarily submitted a request for discharge for the good of the service.  In his request he stated he understood he could request discharge for the good of the service because charges had been filed against him under the Uniform Code of Military Justice (UCMJ), which could authorize the imposition of a bad conduct or dishonorable discharge.  He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person.  The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service. 

11.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with 

counsel on 21 August I990 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own.

12.  The applicant stated that he understood that if his request were accepted, he could be discharged under conditions which are other than honorable and furnished an under other than honorable conditions discharge certificate.  He was advised and understood the effects of an under other than honorable conditions discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the Veterans Administration [now the Department of Veterans Affairs], and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 

13.  The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge.  The applicant opted not to submit a statement in his own behalf.

14.  On 21 August 1990, the applicant applied for and was given authority for excess leave pending approval of his request for discharge for the good of the service.

15.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service.  In the recommendation for approval, the commander stated the applicant's conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  Based on his previous record, he felt punishment could be expected to have minimal rehabilitative effect.  He believed a discharge to be in the best interest of all concerned. 

16.  On 19 September 1990, the approving authority, a colonel, approved the applicant's request for discharge for the good of the service and directed that a discharge, under other than honorable conditions, would be issued him.  The approving authority further directed the applicant's reduction to the lowest enlisted pay grade.  The applicant was discharged in absentia on 23 October 1990. 

17.  The applicant was discharged with an under other than honorable conditions discharge, in the rank and pay grade of Private, E-1, on 23 October 1990, under the provisions of Army Regulation (AR) 635-200, chapter 10, for the good of the service.

18.  On the date of his discharge, the applicant had completed 1 year, 1 month, and 20 days creditable active military service, with lost time for the period 16 July 1990 through 16 August 1990.

19.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

20.  AR 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, at any time after the charges have been preferred, 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, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

21.  AR 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, 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.

22.  AR 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 separation specifically allows such characterization.

23.  AR 635-5-1, in effect at that time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation codes to be used for these stated reasons.  The regulation shows that the separation code "KFS," as shown on the applicant's DD Form 214, is appropriate for discharge when the narrative reason for discharge is "for the good of the service in lieu of court-martial" and the authority for discharge is "AR 635-200, chapter 10."

24.  The SPD/RE Code Cross Reference Table, dated October 1989, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers separated for cause.  It also shows the SPD code with a corresponding RE code and states that more than one RE code could apply.  The Soldier's file and other pertinent documents must be reviewed in order to make a final determination.  The SPD code of "KFS," at the time of the applicant's discharge had a corresponding RE code of "3."

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement. 

2.  The evidence shows the applicant absented himself without authority and was dropped from the rolls of his unit.  He surrendered himself to military authorities and after his surrender, court-martial charges were preferred against him for this absence.  Rather than face trial by court-martial and prove his innocence, he voluntarily applied for a discharge for the good of the service.  The applicant voluntarily requested discharge, for the good of the service, under the provisions of AR 635-200, chapter 10, and he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.

3.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service were both proper and equitable.

4.  The applicant's allegation that Item 24 (Character of Service), of his DD Form 214, should be corrected since it does not correspond to the RE (Reentry) Code is without merit.

5.  The regulations in effect at that time, prescribed that individuals who were discharged for the good of the service - in lieu of trial by court martial under the provisions of AR 635-200, chapter 10, would normally be provided a discharge with their service characterized as under other than honorable conditions and the separation code to be used in these situations would be "KFS."  The SPD/RE Code Cross Reference Table, at the time of the applicant's discharge, provided that the SPD code of "KFS" had a corresponding RE code of "3."  All elements shown in the Special Additional Information section of the DD Form 214 such as the character of service, separation authority, separation code, reentry code and the narrative reason for separation, which must correspond one to the other, are correct as entered.  In view of the foregoing, there is no basis for granting the applicant's request for a correction to his DD Form 214, and an upgrade of his under other than honorable conditions discharge.

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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




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          CHAIRPERSON



INDEX

CASE ID
AR20070009753
SUFFIX

RECON

DATE BOARDED
20080122
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19901023
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.