IN THE CASE OF:	  

		BOARD DATE:  26 January 2012

		DOCKET NUMBER:  AR20110015329 


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, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 5 November 1979 to 1 December 1982 be corrected to show more favorable entries in:

* Item 24 (Character of Service):  Under Conditions Other than Honorable
* Item 25 (Separation Authority): Chapter 10, Army Regulation 635-200 (Enlisted Separations)
* Item 26 (Separation Code): KFS (JFS)
* Item 27 (Reenlistment Code (RE)): RE-3/3C
* Item 29 (Narrative Reason for Separation): For the Good of the Service - In Lieu of Court-Martial

2.  The applicant states the good things he accomplished during his military service from 1971 to 1982 far outweigh the negative incidents that occurred in a year and a half while he was stationed in Germany.

3.  The applicant provides his DD Form 214.

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 initially enlisted in the Regular Army on 3 September 1971 and served a total of three enlistments.  He held military occupational specialties 76W (Petroleum Supply Specialist) and 64C (Motor Transport Operations).  He served in a variety of stateside or overseas assignment, including service in Germany from 24 April 1980 to 24 November 1982.  The highest rank/grade he attained was specialist five/E-5.

3.  His records show he received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four occasions:

* On 26 June 1974, for failure to go to his appointed place of duty
* On 3 August 1981, for drunk driving
* On 12 February 1982, for failure to go to his appointed place of duty
* On 29 April 1982, for failure to go to his appointed place of duty at the appointed time

4.  On 24 September 1982, his commanding officer recommended he receive a bar from reenlistment.  He was furnished with the DA Form 4126-R (Bar to Reenlistment Certificate), on 27 September 1982, but he refused to sign.

5.  On 16 November 1982, his commander recommended him for a special court-martial and that he receive a bad conduct discharge.

6.  On 19 October and later on or about 16 November 1982, his command preferred court-martial charges against him for:

* One specification of being absent without authority
* One specification of making a false entry
* One specification of unauthorized transfer of tax-free alcoholic beverage
* One specification of destruction of property


7.  On 18 November 1982, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the 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, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he indicated that 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 or a dishonorable discharge.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

9.  On 20 November 1982, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other than Honorable Discharge Certificate and be reduced to the grade of E-1.  Accordingly, he was discharged on 1 December 1982.

10.  His DD Form 214 shows he was discharged on 1 December 1982 in the rank/grade of private/E-1 for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions, with the separation codes "KFS (JFS)", and an RE-3/3C.  This form further confirms he completed 11 years, and 29 days of creditable active service. 

11.  On 26 July 1985, the Army Discharge Review Board (ADRB) considered his request to upgrade his discharge to a general under honorable conditions discharge.  The ADRB determined he was properly and equitably discharged, and denied his request to upgrade his discharge.  

12.  On 20 September 1995, the ABCMR found that the overall quality of his service from 5 November 1979 through 1 December 1982 did not warrant an upgrade in his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.

14.  Army Regulation 635-5-1 (Separation Program Designator 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. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5-1 (Separation Documents) establishes RE Codes to be assigned for each SPD.  

	a.  An SPD code of "KFS" applies to persons who are discharged in lieu of trial by court-martial under the provisions of Chapter 10, Army Regulation      635-200.  The SPD/RE Code Cross Reference Table shows an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.

	b.  An SPD code of "JFS" applies to persons who are discharged for the good of the service under the provisions of Chapter 10, Army Regulation 635-200.  The SPD/RE Code Cross Reference Table shows that an RE code of 4 is the applicable RE code assigned for individuals separated in lieu of trial by court-martial.

15.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) prescribes eligibility criteria governing the enlistment of persons, with or without prior service, into the Regular Army (RA) and the U.S. Army Reserve (USAR).  Table 3-6 (Armed Forces Reenlistment Eligibility Codes) of this regulation, in effect at the time, states, in pertinent part, that RE-3C applies to persons who have completed over 4 months service who do not meet the basic eligibility pay grade requirements of Chapter 2, Army Regulation 601-280 (Army Retention Program).  Paragraph 3-10 provides that RE Codes may be changed only if they are determined to be administratively incorrect.  

16.  Army Regulation 601-280 prescribes the criteria for the Army Retention Program.  Paragraph 2-22 of this regulation, in effect at the time, states, in pertinent part, that personnel in grade E-2 and below, regardless of years of service completed, are not authorized reenlistment.  No waivers considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows he received NJP on several occasions during his last enlistment, and he was charged with making a false entry on a sick slip, conducting an unauthorized transfer of tax-free alcoholic beverage, and destruction of property.  As such; the character of service on his DD Form 214 accurately reflects his overall record of service for that period.  

2.  The separation authority listed on his DD Form 214 is Army Regulation 
635-200, chapter 10.  This entry is used when a service member voluntary requests discharge in lieu of trial by court-martial.  Evidence shows that having been advised by legal counsel, he voluntarily requested discharge for the good of the service.

3.  The separation codes listed on his DD Form 214, "KFS (JFS)," are used to indicate he was discharged for the good of the service in lieu of trial by court-martial.  These codes are accurate because he voluntary requested to be discharged in lieu of trial by court-martial for the good of the service.

4.  RE-3/3C applies to those who are in the grade E-2 or below, regardless of years of service completed, and are not authorized reenlistment.  He has provided no evidence to show his RE is incorrect.  Additionally evidence shows his commander barred him from reenlistment and he held the rank/grade of private/E-1 upon his discharge.

5.  The narrative reason for separation on the DD Form 214 essentially lists the meaning of the SPD codes annotated in item 26 of this same form.  This entry is correct in that shows he voluntary requested to be discharged in lieu of trial by court-martial for the good of the service.

6.  Based on the foregoing, there is no basis for granting his 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)                                         AR20110015329





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ABCMR Record of Proceedings (cont)                                         AR20110015329



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