BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001010 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ _x_______ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001010 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. BOARD DATE: 27 July 2017 DOCKET NUMBER: AR20160001010 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 (UOTHC). 2. The applicant states the Department of Veterans Affairs stated separation program designator (SPD) code JFS stands for a general discharge. 3. The applicant provides: * letter from the National Personnel Records Center, dated 27 January 2015 * DD Form 214 (Report of Separation 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. The applicant enlisted in the Regular Army on 13 April 1976 for a period of 3 years. He completed his training and was awarded military occupational specialty 63F (recovery specialist). 3. On 2 December 1977, nonjudicial punishment was imposed against him for disobeying a lawful order and disobeying a lawful command. 4. He was absent without leave (AWOL) from 21 December 1977 to 23 January 1978. On 31 January 1978, charges were preferred against the applicant for the AWOL period. 5. On 1 February 1978, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given an Undesirable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to make a statement in his own behalf. In summary, he stated he enlisted in the Army because he dropped out of school, he couldn’t get a job, for the benefits offered, and he could finish his schooling in the service and get paid for it. He was AWOL because he couldn’t stand the military overseas and he was hassled constantly. His attitude toward the Army was negative. It would not benefit anyone if he stays in the service. 6. On 13 March 1978, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 7. On 14 April 1978, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed a total of 1 year, 11 months, and 1 day of creditable active service with 33 days of lost time. His service was characterized as UOTHC and he was assigned SPD code JFS. 8. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. 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 UOTHC 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. 2. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code JFS applied to Soldiers being administratively discharged under Army Regulation 635-200, chapter 10, for conduct triable by a court-martial. DISCUSSION: 1. The evidence of record shows the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as UOTHC. 2. His contention the Department of Veterans Affairs stated SPD code JFS stands for a general discharge is noted. However, the governing regulation states SPD code JFS applied to Soldiers being discharged under Army Regulation 635-200, chapter 10, for conduct triable by a court-martial. 3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 4. His record of service included one NJP and 33 days of lost time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001010 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001010 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2