IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001566 


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, in effect, upgrade of his under other than honorable conditions discharge to a general discharge and change of his narrative reason for separation.

2.  The applicant states that did not desert; he left because he wasn't getting transferred after he told his unit that he had a fear of heights.  He went to his home state where he turned himself in.  He was asked if he wanted out of the Army.  It wasn't wartime, so he agreed to a general discharge.  He was told the general discharge would be like he was never in so he accepted.  It was the worst decision of his life.  He had no problem fighting for his country, just jumping out of an airplane and concern for his safety.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 9 April 1986.  He completed training, to include basic airborne training, and he was awarded military occupational specialty 11B (Infantryman).

3.  Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was assigned to Company C, 2d Battalion, 325th Infantry, 82d Airborne Division, Fort Bragg, NC, effective 28 August 1986.

4.  On 8 December 1986, charges were preferred against him for being AWOL from 30 September until 24 November 1986.
 
5.  The applicant consulted with counsel and voluntarily requested 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 indicated that he understood the elements or the charges against him and admitted that he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged that he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He understood that he would be deprived of many or all Army benefits and that he might be ineligible for veterans benefits administered by the Veterans Administration (VA).  He stated that he also understood he could expect to encounter substantial prejudice in civilian life because of the discharge.  He also indicated that he had received legal advice but that his request was being made voluntarily of his own free will without coercion.

6.  On 12 December 1986, the separation authority approved the applicant's request under the provisions of Army Regulation 635-200, chapter 10 with an Under Other Than Honorable Conditions Discharge Certificate.  On 23 March 1987, the applicant was so separated.  He had 9 months and 21 days of creditable active service.  The DD Form 214 he was issued at the time shows in:

* item 25 (Separation Authority) the entry AR (Army Regulation) 635-200, chapter 10
* item 26 (Separation Code) the entry "KFS"


* item 28 (Narrative Reason for Separation) the entry "for the good of the service - in lieu of court-martial"

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

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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.

9.  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 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.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The character of the discharge is commensurate with his overall record.

2.  There is no available evidence to support the applicant's contention that he reported his fear of heights and requested or was pending a transfer.  It is noted that he completed basic airborne training.

3.  In view of his request for discharge for the good of the service - in lieu of trial by court-martial, his assertion that he agreed to a general discharge lacks credibility.

4.  In the absence of evidence to the contrary, he was properly and equitably discharged in accordance with the appropriate regulations.  It appears that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He voluntarily requested, under the provisions of Army Regulation 635-200, chapter 10, discharge in lieu of trial by court-martial.  Therefore, items 25 and 28 of his DD Form 214 are commensurate with and correspond to the authority and reason for 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)                                         AR20110001566



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1