IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029639 


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 general discharge to an honorable discharge.  He also requests correction of his separation program designator (SPD) code of "KFS."

2.  He states the obvious error on his DD Form 214 (Report of Separation from Active Army) is that the entry, "CHAP 10, AR 635-200 SPD KFS" was typed in after the fact.  He further states he has graduated from college with a Bachelor of Divinity Degree and has lived accordingly 

3.  He provides:

* his DD Form 214
* a Pensacola Bible Institute Bachelor of Divinity certificate, dated 28 May 1977
* his discharge order

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 enlisted in the Regular Army on 29 December 1972.

3.  His disciplinary history includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing the following offenses:

* on 8 May 1973 for possessing an undetermined amount of marijuana
* on 20 November 1973 for disobeying a lawful order from a noncommissioned officer (NCO)

4.  On 3 July 1974, charges were preferred against him for:

* disobeying a lawful order from an NCO on 21 May 1974
* using disrespectful language towards an NCO on 21 May 1974
* being absent without leave (AWOL) from 28 June to 1 July 1974

5.  On 16 July 1974, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and he was fully advised of the nature of his rights under the UCMJ at the various possible stages of the proceedings including those of appeal involved in a trial by court-martial.

6.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be 
deprived of his rights and benefits as a veteran under both Federal and State laws.  He submitted a statement in his own behalf stating that:

* The discharge was in the best interest of himself and the Army
* His decision to request a Chapter 10 was made after long and careful consideration
* He was 19 years old, raised in Delaware, and dropped out of school in the 11th grade, but he obtained a general education diploma
* He requested to be discharged because he could not adjust to the military
* He experienced difficulties in both his unit and the Army
* If discharged, he would go to the Bible College in Pensacola to become a minister
* He had been a private (PV2)/E-2 for months even though he has not been reduced
* He had an undiagnosed knee ailment that has resulted in his receiving profiles
* He enlisted and was assigned to Hawaii after he completed advanced individual training

7.  On 28 August 1974, his company commander recommended approval of the applicant's discharge with an undesirable discharge.  His battalion and brigade commanders recommended approval with an undesirable discharge.

8.  On 10 September 1974, the separation authority approved the applicant's discharge action under provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed the applicant be issued a General Discharge Certificate (DD Form 257A) with an SPD code of "KFS."

9.  On 27 September 1974, he was discharged accordingly.  The DD Form 214 he was issued shows in:

* Item 9c (Authority and Reason) the entry Chapter 10, Army Regulation 635-200, SPD code "KFS"
* Item 9e (Character of Service) the entry "under honorable conditions"
* Item 9f (Type of Certificate Issued) the entry DD Form 257A
* Item 18e (Total Service for Pay) the entry 1 year, 8 months, and 16 days

10.  He submitted Special Orders Number 270, issued by Headquarters U.S. Army Personnel Center, Oakland, CA, dated, 27 September 1974, that shows he received a General Discharge Certificate.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

13.  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.

14.  Army Regulation 635-5-1 (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 SPD code of KFS is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the reason for his discharge should be deleted from his DD Form 214 because it is in error.  However, he did not submit any evidence to refute the reason for his discharge.

2.  The evidence of record shows the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10 on 10 September 1974.  Although an undesirable discharge would normally be appropriate for a chapter 10 discharge, it appears the separation authority considered the applicant's overall service 
when he directed the issuance of a General Discharge Certificate.  Based on the applicant's approved chapter 10 discharge, the appropriate corresponding SPD code of KFS was assigned.

3.  The applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The Bachelor of Divinity certificate provided by the applicant documenting his good post-service conduct is noteworthy.  However, good post-service accomplishments alone are not sufficiently mitigating to support an upgrade of his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100029639



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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