BOARD DATE:	  9 October 2012

		DOCKET NUMBER:  AR20120003915 


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, an upgrade of his discharge under other than honorable conditions to honorable or general.  He also requests, in effect, amendment of his separation authority and separation program designator (SPD) code.

2.  The applicant states, in effect:

* he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 16 (due to changes in service obligation) or chapter 18 (due to failure to meet body fat standards)
* he was assigned an SPD code of KFS or KES
* his ex-wife caused a bunch of trouble and stole a bunch of stuff
* the military prosecuted him for it and he believes it is unfair because he was in Germany
* he is filing for veterans' benefits and his discharge is unfair and has always haunted him

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim) and two copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty).


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.  On 6 April 1994, the applicant enlisted in the Regular Army (RA) for 3 years.  He completed training as an Avenger crewmember.  He reenlisted in the RA for 3 years on 5 December 1996.

3.  The facts and circumstances pertaining to the applicant's discharge are not available.  His DD Form 214 shows the applicant was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, on 24 November 1999.  He completed 5 years, 7 months, and 19 days of net active service during this period.  He was assigned an SPD of KFS.

4.  The applicant provides a VA Form 21-4138 in which he states:

* it was alright for him to put his life on the line and do everything he was told to do
* he reinjured his knee when he was in Germany and he was placed on a physical profile
* he was deployed to Turkey and he saw innocent people killed
* when he returned to Germany, he was taken to the Criminal Investigation Division and questioned about some stolen items
* his ex-wife was in cahoots with several people in the housing area, getting hooked up with stolen property
* he was unjustly accused because she was his wife at the time
* his attorney told him he should do 3 to 5 years of a 16-year sentence and he refused to do time for a crime he did not commit
* he wanted to get out of the Army and he has been fighting to get his "claim" ever since
* he wants what's coming to him so he took the advice from his father and uncle and got the help he needed for himself and his family

5.  On 22 August 2007, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

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

	a.  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.

	b.  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.

	c.  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.

7.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons.  The SPD code KFS applies to individuals discharged for the good of the service in lieu of trial by court-martial.  The SPD code KES does not exist.

8.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The facts and circumstances surrounding the applicant's discharge are not available.  The available evidence indicates he requested to be discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  A discharge under other than honorable conditions is normally considered appropriate.

3.  He has not shown error or injustice in his narrative reason for separation or the SPD he was assigned.  The SPD code of KFS coincides with his separation authority and his narrative reason for separation.

4.  The available evidence suggests that the character of service he received appropriately reflects the condition of his service at the time of his discharge.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  The applicant has not proven error or injustice in the type of discharge he received.  In view of the foregoing, his 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 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)                                         AR20120003915



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003915



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1