PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 May 1998
DOCKET NUMBER: AC97-07948
I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. The following members, a quorum, were present:
The applicant and counsel if any, did not appear before the Board.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
FINDINGS:
1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.
2. The applicant requests, in effect, that the type of discharge be changed.
3. The applicant states in effect, that he cant get stable government employment with the post office.
4. The applicants military records show that he entered the Regular Army on 12 May 1981 for 4 years. He successfully completed an overseas tour of duty in Germany and the highest rank he held while on active duty was specialist/E-4 which he attained on 1 August 1983. The applicant had earned the following awards and decorations: the Good Conduct Medal; the Overseas Service Ribbon; and the Army Service Ribbon. There are no other documented acts of valor, achievement or service warranting special recognition contained in the applicants record.
5. The applicants record does contain a history of disciplinary infractions which included acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on four separate occasions.
6. On 22 January 1982 the applicant accepted his first NJP for violation of Article 111 of the UCMJ by operating a passenger car while drunk. On
7 September 1982 the applicant accepted his second NJP for violation of Article 92 for operating a motor vehicle on post, while driving privileges were revoked, on two separate occasions. On 30 August 1984 the applicant accepted a third NJP for violation of Article 91 for disobeying a lawful order from a superior noncommissioned officer. The resultant punishment included a reduction to the grade of private first class which was suspended for 120 days.
7. On 18 October 1984 the suspended reduction contained on the NJP of
30 August 1984 was vacated based on the applicant testing positive for THC (marijuana) on 6 September 1984. Also on 18 October 1984 the applicant accepted an NJP for violation of Article 134 for wrongfully using marijuana on two separate occasions (19 June 1984 and 6 September 1984). His punishment for theses offenses included a reduction to private/E-2.
8. On 31 ,October 1984 the applicants unit commander notified the applicant of his intent to initiate separation action on him, under the provisions of chapter 14, AR 635-200. The commander cited his reasons for the action the applicants acceptance of the NJPs of 18 October and 30 August 1984; and the positive THC results of 19 June and 6 September 1984. On 19 November 1984 the applicant consulted counsel and completed his election of rights.
9. On 14 January 1985 the appropriate authority approved the separation action and directed the applicant be issued a genera/under honorable conditions discharge (GD). Accordingly, on 7 February 1985 the applicant was discharged after completing 3 years, 8 months, and 26 days of active military service.
10. The DD Form 214 (Certificate of Release or Discharge From Active Duty), issued the applicant, cites the separation authority in item #25 as AR 635-200, Chapter 14-12C; the Separation Code in item #26 as JKK; and the narrative reason in item #28, as Misconduct-Drug Abuse. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), currently in effect, lists the narrative reason associated with SPD code JKK, and the separation authority of AR 635-200, Chapter 14-12C, as simply Misconduct.
11. On 23 June1978 the Army Discharge Review Board denied the applicant's request for an upgrade to his discharge and found that the discharge process was proper in all respects.
12. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
CONCLUSIONS:
1. The discharge proceedings were conducted in accordance with law and regulation applicable at the time. The reason for and the character of the discharge are commensurate with the applicant's overall record of military service. However, regulations currently in effect list the reason for the applicants discharge as misconduct and do not include the term drug abuse in the narrative description of the reason for separation. The Board determined that such a favorable narrative reason change was proper based on current policy and procedures pertaining to the basis for discharge.
2. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
3. In view of the foregoing, the applicants records should be corrected, but only as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by changing the narrative reason in item #28 of the DD Form 214 to Misconduct.
2. That the Department of the Army issue to the individual concerned a new
DD Form 214 that reflects that the narrative reason for separation has been changed to Misconduct.
3. That so much of the application as is in excess of the foregoing be denied
BOARD VOTE:
________ ________ ________ GRANT AS STATED IN RECOMMENDATION
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
______________________
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