BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090005145 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the Separation Code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "KFS" to a more favorable code.

2.  The applicant states, in effect, that the Army Discharge Review Board (ADRB) upgraded his discharge to a general discharge but neglected to correct his Separation Code.  He adds that because of this neglect, the Defense Finance and Accounting Service (DFAS) continues to recoup monies due to him.  He further adds that on the advice of the ADRB and in the interest of justice, his "KFS" Separation Code should be expunged or changed.

3.  The applicant provides a copy of his reissued DD Form 214, dated 2 April 1999; a summary brief; a copy of an extract from a local newspaper, dated 24 March 2000; a copy of the ADRB letter, dated 1 November 2000; and a copy of the U.S. District Court, Western District of Texas, El Paso Division, Order Granting Dismissal, dated 9 September 2005, in support of his request.

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 records show he enlisted in the Regular Army for a period of 2 years and 20 weeks on 13 September 1990.  His records also show he held military occupational specialty 14T (Patriot Launching Station Enhanced Operator/Maintainer), he executed multiple reenlistments in the Regular Army, and attained the rank/grade of sergeant (SGT)/E-5.

3.  On 1 March 1999, court-martial charges were preferred against the applicant for three specifications of being absent without leave, one specification of escape from custody, and one specification of failure to obey an order.  A copy of the DA Form 458 (Charge Sheet) is not available for review with this case.

4.  On 11 March 1999, 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 Uniform Code of Military Justice (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, the applicant requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations).

5.  In his request for discharge, the applicant indicated 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.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

6.  On 21 March 1999, the applicant’s intermediate and senior commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

7.  On or about 24 March 1999, 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 the issuance of an under other than honorable conditions discharge, and that he be reduced to the lowest enlisted grade.  On 2 April 1999, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  He had completed 8 years, 6 months, and 2 days of creditable active military service and he had 29 days of lost time during this period of enlistment.  Item 26 (Separation Code) of this form shows the entry "KFS" and a reentry code of “4.”

8.  On 13 October 2000, the ADRB granted the applicant partial relief in the form of an upgrade of the characterization of his service to a general discharge, under honorable conditions.  The ADRB voted not change the narrative reason for separation.  Accordingly, the applicant was reissued a DD Form 214 that shows his character of service as under honorable conditions (general) but the Separation Code of "KFS" and the reentry code remained unchanged.

9.  The applicant submitted a summary brief in which he chronicles his military service and states that while serving in Patriot Missile Battery in South Korea, he recognized some systematic problems with the Patriot operating system and tried to warn his superiors but no one listened to him.  He then became traumatized at the thought of an accidental launch into North Korea and could no longer bear to report to his duty station.  He was given several kinds of drugs, he was placed in solitary confinement and was ultimately given a choice of long term confinement or a discharge in lieu of a court martial.  He adds that the Army ultimately recognized the systematic problem and replaced the Patriot missiles as shown on the enclosed newspaper article.  The ADRB upgraded his discharge to a general discharge.  However, years later, the U.S. Department of Justice filed a law suit against him to recover his last reenlistment bonus.  However, the lawsuit was dropped once the ADRB upgraded his discharge as shown on the enclosed court order granting dismissal.  Nevertheless, the Internal Revenue Service arbitrarily seized his income tax refund and a stimulus check.  The reason for this action is that when the ADRB upgraded his discharge, it neglected to upgrade his Separation Code. 

10.  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.

11.  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 "KFS" SPD code is the correct code for Soldiers separated under chapter 10, Army Regulation 635-200.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Separation Code should be upgraded to a more favorable code.

2.  The applicant’s records show 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 trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the applicant’s rights were fully protected throughout the separation process. 

3.  The evidence of record further confirms 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 trial by court-martial.  The Separation Code associated with this type of discharge is "KFS.  Therefore, the applicant received the appropriate Separation Code associated with his discharge.

4.  The ADRB determined that the applicant's characterization of service was inequitable and upgraded it to show he was separated with a general discharge, under honorable conditions.  The ADRB also considered the applicant's Separation Code along with the discharge upgrade action and determined that the reason for separation should not be changed.




5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the SPD is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, the applicant is not entitled to relief. 

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.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090005145



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ABCMR Record of Proceedings (cont)                                         AR20090005145



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