RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 March 2008
	DOCKET NUMBER:  AR20070016751 


	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. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. William D. Powers

Member

Mr. Jerome L. 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:

	a.  an upgrade of his 12 February 1979 “Under Other Than Honorable Conditions” discharge to an “Honorable” discharge;

	b.  correction of Item 6a (Grade, Rate or Rank) and Item 6b (Pay Grade) on his DD Form 214 (Report of Separation from Active Duty), dated 12 February 1979, from "private (PVT)/E-1" to "specialist four (SP4)/E-4;" 

	c.  correction of his Separation Code “JFS” on his DD Form 214, dated 12 February 1979; and

	d.  correction of Item 14 (Place of Entry into Current Active Service) on his DD Form 214, dated 22 March 1978, from “Fort Knox, Kentucky” to “Fort Campbell, Kentucky.”

2.  The applicant states that:  

	a.  he was unjustly discharged and has just found out that this type of discharge would prevent him from having a burial flag upon his death.  He further adds that he was told his discharge was under honorable conditions;

	b.  his rank was reduced from SP4/E-4 to PVT/E-1 in order to get an early out because of family hardship (divorce).  He was told that if he did not sign the paperwork, he would have been penalized under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ); 

	c.  he entered military service at Fort Campbell, Kentucky, and had never been to Fort Knox, Kentucky; and

	d.  he is not sure what Separation Code “JFS” stands for.

3.  The applicant provided copies of his DD Forms 214, dated 22 March 1978 and 12 February 1979, in support of his application.






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 that he enlisted in the Indiana Army National Guard (INARNG) on 20 December 1974 for a period of 6 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  

3.  The applicant’s record further shows that on 9 April 1976, Headquarters, Fifth United States Army, Fort Sam Houston, Texas, published Letter Orders Number E-04-48, ordering him to active duty for a period of 19 months and 18 days, effective 24 May 1976.  Accordingly, he was discharged from the INARNG on 23 May 1976.  He was assigned to the U.S. Army Reception Station, Fort Knox, Kentucky, with an ultimate assignment to Fort Campbell, Kentucky.  

4.  The applicant's record also shows that he served in Korea from 7 November 1976 to 5 April 1978.  While in Korea, he extended his current period of active duty by three months.

5.  On 9 December 1977, he accepted nonjudicial punishment under Article 15 of the UCMJ for violating a general regulation during the month of October 1977 while stationed in Korea.  His punishment consisted of 7 days of extra duty and 7 days of restriction. 

6.  He was honorably discharged on 22 March 1978.  The DD Form 214 he was issued at the time of separation shows he completed 2 years, 2 months, and 9 days of active military service.  Item 14 of this form shows “Fort Knox, Kentucky” as the place of entry into current active service.


7.  The applicant’s record also shows that he reenlisted in the Regular Army on 23 March 1978 for a period of 3 years in the rank/grade of SP4/E-4.  He was assigned as a wheel vehicle mechanic to Headquarters and Headquarters Company, 5th Battalion, 4th Brigade, Fort Leonard Wood, Missouri. 

8.  The applicant's record shows that he was awarded the Exert Marksmanship Qualification Badge with Rifle Bar (M-16).  His records do not show any significant acts of valor during his military service.

9.  The applicant's record reveals further disciplinary action which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ as follows:

	a.  on 28 June 1978 for failing to go to his appointed place of duty on or about 26 June 1978 and on or about 28 June 1978.  His punishment consisted of forfeiture of $124.00 pay for one month, reduction to private first class (PFC)/E-3 (suspended for 180 days), 14 days of extra duty, and 14 days of restriction; 

	b.  on 25 September 1978, for being absent without leave (AWOL) during the period on or about 18 September 1978 through on or about 19 September 1978 and for failing to go to his appointed place of duty on or about 20 September 1978.  His punishment consisted of reduction to the grade of private (PV2)/E-2 (suspended for four months), forfeiture of $200.00 pay per month for two months (suspended for four months), and 15 days of Correctional Custody Facility; 

c.  on 5 October 1978, the unexecuted portion of the punishment of
15 days Correctional Custody Facility imposed on 25 September 1978 was remitted by the imposing authority; and. 

d.  on 22 November 1978, the suspension of reduction to the grade of PV2/E-2 and forfeiture of $200.00 pay per month for two months imposed on
25 September 1978, was vacated and the unexecuted portion of the punishments was ordered executed.   

10.  On 19 January 1979, Court-Martial charges were preferred against the applicant for:

	a.  one specification of being AWOL during the period on or about 24 November 1978 through on or about 19 December 1978;

	b.  three specifications of failing to go at the time prescribed to his appointed place of duty, on or about 26 December 1978, on or about 4 January 1979, and on or about 5 January 1979;

	c.  one specification of leaving his appointed place of duty without authority, on or about 4 January 1979;
	
	d.  one specification of disobeying a lawful order of a superior noncommissioned officer, on or about 22 December 1978;

	e.  two specifications of breaking restriction, on or about 22 December 1978 and on or about 26 December 1978; and

	f.  two specifications of willfully disobeying a lawful order of a superior commissioned officer, on or about 6 January 1979 and on or about 8 January 1979.

11.  On 19 January 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

12.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

13.  On 22 January 1979, the applicant's immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  The immediate commander remarked that the applicant had established a continuous pattern of shirking his responsibilities.  He further added that during the period 25 May 1978 to 22 January 1979, he had one instance of AWOL and 8 instances of being absent from his appointed place of duty.  He was transferred to another section and made some improvement in his personal conduct and appearance.  However, his lack of concern to fulfill his responsibility by being at his place of duty on time continued to persist.  His continued misconduct and poor attitude toward military life were the reasons for recommending approval.  The immediate commander concluded that further rehabilitation would have been nonproductive.

14.  On 23 January 1979, the intermediate commander echoed the immediate commander’s remarks that the applicant’s poor attitude and his misconduct were having a deleterious effect on other Soldiers in the unit.  He recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.   

15.  On 1 February 1979, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to private/E-1.  On 12 February 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with an Under Other Than Honorable Conditions Discharge Certificate.  The form further shows that the applicant had completed 2 years,
11 months, and 25 days of creditable military service and had 34 days of lost time.  This form also shows his rank and pay grade as PVT/E-1 and his Separation Code as “JFS.” 

16.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. 

17.  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.




18.  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.

19.  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.

20.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the Separation Program Designator (SPD) codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of DOD and the military services to assist in the collection and analysis of separation data.  The "JFS" SPD code is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200, in lieu of trial by Court-Martial.

21.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation is entered in Item 4.  Item 14 of the DD Form 214, in effect at the time, shows the place of entry onto active duty.  A Soldier’s initial enlistment contract or appointment document is the source for this date, or any approved change by the Enlisted Records and Evaluation Center (EREC).  The zip code was required for this item even though the street address was not required.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214, dated 22 March 1978, should be corrected to show “Fort Campbell, Kentucky” as the place of entry into his period of active service.  He also contends that his DD Form 214, dated 12 February 1979, should be corrected by upgrading his discharge, correcting his rank and grade to show SP4/E-4, and explaining his “JFS” Separation Code.  

2.  With respect to the applicant’s place of entry on active duty, evidence of record shows that the applicant was ordered to active duty on 9 April 1976 for a period of 19 months and 18 days, effective 24 May 1976.  He was assigned to the U.S. Army Reception Station, Fort Knox, Kentucky, with an ultimate assignment to Fort Campbell, Kentucky.  Therefore, the initial place he entered active duty was Fort Knox, Kentucky and the entry is correct on his record.  

3.  With respect to the applicant’s discharge on 12 February 1979:

a.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

b.  There is no evidence in the available records nor did the applicant provide documentation to substantiate what he described as “unjustly discharged.” The applicant was discharged in accordance with chapter 10 of Army Regulation 635-200, in lieu of trial by Court-Martial.  The underlying reason for his discharge was his trial by Court-Martial.  He chose to request separation instead.  

c.  Based on his repeated acts of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

d.  Evidence of record confirms that the applicant’s separation code was assigned based on the fact that he was separated under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trail by Court-Martial.  The Separation Code associated with this type of discharge is "JFS."  Therefore, the applicant received the appropriate Separation Code associated with his discharge.

	e.  Evidence of record shows that the applicant received an under other than honorable conditions discharge.  By law, when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.  Therefore, the applicant’s rank/grade of PVT/E-1 is correctly reflected on his DD Form 214, dated 12 February 1979.  

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local Veterans Administration (VA) representative who can best advise him on his eligibility for benefits.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jea___  __wdp___  __jlp___  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.



							James E. Anderholm
______________________
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.