RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2008
	DOCKET NUMBER:  AR20070017925 


	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.


Director



Analyst

The following members, a quorum, were present:




Chairperson



Member



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, in effect, upgrade of his under other than honorable conditions discharge. 

2.  The applicant states, in effect, he received a discharge under other than honorable conditions in lieu of trial by court-martial, he wants to fix his life, and his discharge hinders him from getting the help that he needs.

3.  The applicant provides no additional documentary evidence.

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 service records show that he enlisted in the U.S. Army Reserve on 10 October 1989 and entered active duty in the Regular Army (RA) for a period of 3 years on 14 December 1989.  Upon completion of basic combat training and advanced individual training, he was awarded MOS 88M (Motor Transport Operator).

3.  The applicant's military service records are absent a copy of the applicant’s separation action.  However, the applicant’s records contain sufficient documents for the Board to conduct a fair and impartial review of the applicant’s case.

4.  The applicant's military service records contain a copy of Headquarters,
520th Personnel Service Company (Germany), Orders 079-6, dated 1 April 1992, as amended by Headquarters, 520th Personnel Service Company (Germany), Orders 087-8, dated 10 April 1992.  These orders shows that on 1 April 1992, the applicant was reassigned from Company C, 708th Support Battalion (Germany) to the U.S. Army Transition Point, Fort Dix, New Jersey, for discharge from the RA under the provisions of Army Regulation 635-200.
5.  The applicant's military service records contain a copy of an Optional Form 271 (Conversation Record), dated 20 April 1992.  This document shows, in pertinent part, that an individual acting on behalf of Sergeant First Class (SFC) Daniel M. T______, Noncommissioned Officer in Charge (NCOIC), Control Section, U.S. Army Training Center and Fort Dix (USATC&FD), Fort Dix, New Jersey, contacted Specialist Four H___, 520th Personnel Service Company (PSC) (Baumholder, Germany) and verified that the applicant requested a discharge under the provisions of Army Regulation 635-200, Chapter 10.  This document also shows that Major General William M. B____, Commander,
1st Armored Division (Germany), approved the applicant’s request for discharge on 25 March 1992 and directed he be issued an other than honorable discharge.

6.  The applicant's military service records contain a copy of an Optional Form 271 (Conversation Record), dated 23 April 1992.  This document shows, in pertinent part, that an individual acting on behalf of SFC Daniel M. T______, NCOIC, Control Section, USATC&FD, Fort Dix, New Jersey, contacted Records Correction and Verification, Fort Benjamin Harrison, Indiana, and verified specific information that was missing from the applicant’s field Military Personnel Records Jacket (MPRJ).

7.  The applicant's military service records contain a copy of Headquarters, USATC&FD, Fort Dix, New Jersey, memorandum, dated 24 April 1992, subject: Separation Physical Examination.  This document shows that the required mental evaluation and physical examinations were completed and the applicant was cleared for separation.

8.  The applicant's military service records contain a copy of Headquarters, USATC&FD, Transition Point, Fort Dix, New Jersey, Orders 115-053, dated
24 April 1992.  These orders show the applicant was discharged from the RA, in the grade of private (E-1), under the provisions of Army Regulation 635-200, Chapter 10, effective 24 April 1992.

9.  The applicant's military service records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 24 April 1992, under other than honorable conditions, in the grade of private (E-1), in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service in lieu of court-martial and issued the Separation Program Designator (SPD) Code “KFS.”  This document also shows that at the time of his discharge, the applicant was credited with completing
2 years, 4 months, and 11 days net active service.

10.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An Under Other Than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the Service.  However, the discharge authority may direct an honorable or general discharge, if such is merited by the member’s overall record during the current enlistment.

13.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identifies the SPD code of “KFS” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.

14.  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, 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.

15.  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.

16.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

17.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable conditions discharge should be upgraded because he wants to fix his life and his discharge hinders him from getting the help that he needs.

2.  The evidence of record confirms that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service in lieu of trial by court-martial, under other than honorable conditions, and issued the appropriate SPD Code.

3.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 635-200, Chapter 1 (General Provisions), which provides the processing procedures for separation and specific guidance in determining the character of service and description of separation.  Thus, in the absence of evidence to the contrary, the Board concludes that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, the applicant is not entitled to upgrade of the character of service of his discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM __  __CAD__  __QAS__   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.




___John T. Meixell    __
      CHAIRPERSON




INDEX

CASE ID
AR20070017925
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2008MMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19920424
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service – In Lieu of C-M
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.