IN THE CASE OF:
BOARD DATE: 3 March 2011
DOCKET NUMBER: AR20100022227
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 upgrade of his under other than honorable conditions discharge.
2. The applicant states his discharge was improper because it was based on one isolated incident which was not his fault.
3. The applicant provides no 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 12 April 1982, the applicant enlisted in the Regular Army for 4 years. He completed training as a dental specialist.
3. The facts and circumstances pertaining to the applicants discharge are not contained in the available records. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he received shows he was discharged on 20 April 1984 under the provision of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 4 (sic), for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge. He was issued a separation code of KFS. He completed 2 years and 9 days of net active service this period.
4. A review of the available record fails to reveal that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
5. 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.
6. 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 Soldiers separation specifically allows such characterization.
7. 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 states, in pertinent part, that the SPD code KFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of in lieu of trial by court-martial.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant's DD Form 214 shows he was discharged under the provisions of Army Regulations 635-200, chapter 4, his SPD code and reason for separation indicates he was discharged under the provisions of Army Regulation 635-200, chapter 10.
2. There is no evidence in the available record and the applicant did not provide any evidence that shows his discharge was improper because it was based on one isolated incident. In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
3. The applicant's record is void of the specific facts and circumstances surrounding his discharge. It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.
4. In view of the foregoing, the applicants request should be denied.
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) AR20090005994
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100022227
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2010 | 20100024089
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The SPD code of "KFS" is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10 by reason of in lieu of trial by court-martial. His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial conviction and the punitive discharge that he might have received.
ARMY | BCMR | CY2009 | 20090002396
On 28 March 2007, the separation authority approved the applicants request for discharge and directed that he be discharged under other than honorable conditions. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. _______ _ _XXX______ ___ 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.
ARMY | BCMR | CY2009 | 20090009712
However, his RE Code will not allow enlistment. 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. The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.
ARMY | BCMR | CY2008 | 20080015854
The applicant was given a separation code of "KFS" (voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial) and an RE code of "4." This regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or reason for discharge. The evidence shows the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of...
ARMY | BCMR | CY2011 | 20110010531
He requested a discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, on the advice of his attorney. The ADRB determined the characterization of his service was too harsh and voted to grant relief in the form of an upgrade to under honorable conditions and to restore his rank to SSG. The evidence of record also shows that when the ADRB upgraded the applicant's discharge, the board determined the reason for the discharge was...
ARMY | BCMR | CY2011 | 20110014940
In his request for discharge, he acknowledged he understood if the discharge request was approved, he might be discharged under other than honorable conditions. It states the SPD code KFS is the appropriate code to assign to Soldiers discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment, and includes a list of Armed Forces reentry codes,...
ARMY | BCMR | CY2009 | 20090012274
The applicant requests upgrade of his general, under honorable conditions discharge to an honorable discharge, with a corresponding change to his reentry (RE) code and narrative reason for separation. His second period of service ended when he was separated for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), with a characterization of service of general, under honorable conditions. His third period of...
ARMY | BCMR | CY2011 | 20110014222
The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his reentry (RE) code as 1 vice 4 so he can enlist in any branch of the service without a waiver. In his request for discharge, he acknowledged he understood if the discharge request was approved, he might be discharged under other than honorable conditions. This regulation provides that prior to discharge or release from active duty individuals will be assigned RE codes...
ARMY | BCMR | CY2013 | 20130002981
On 25 May 2011, the separation authority approved the applicant's voluntary request for discharge and directed his discharge under other than honorable conditions. He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 21 June 2011 under the provisions of Army Regulation 635-200, chapter 10. The evidence of record confirms the applicant's RE code was assigned based on his discharge under the provisions of Army Regulation...
ARMY | BCMR | CY2014 | 20140008881
The applicant states: * he desires to reenter military service * he was threatened with jail if he did not request a discharge under the provisions of chapter 10, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) * his leadership did not like him very much * he was hurt and sick, but his chain of command did not assist him * he sought care at Womack Army Medical Center 3. The applicant's records show he was charged with the commission of multiple offenses punishable...