RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060011779 


	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.


Mr. Gerard W. Schwartz

Acting Director

Mrs. Victoria A. Donaldson

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Paul M. Smith

Member

Mr. Jerome L. Pionk

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of the separation code on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states that he was separated because of a positive urinalysis test and for driving under the influence.  He further states that the separation code "JKM" shown on his DD Form 214 is incorrect.

3.  The applicant provides a copy of an undated "code sheet" in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 7 January 1989.  The application submitted in this case is dated 8 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 13 November 1986.  He was trained in, awarded, and served in military occupational specialty (MOS) 76Y (Armorer), and the highest rank he attained while serving on active duty was specialist (SPC).

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for on or about 6 October 1988, failure to go to his prescribed place of duty.  The applicant's records further show that he was counseled on numerous occasions for failing to go to his appointed place of duty, failing to properly manage his personal affairs, and failing to pay his debts.  Records also show that the applicant was arrested by civilian law enforcement personnel on 20 October 1988 for driving under the influence.

5.  On 10 January 1989, the unit commander notified the applicant that he was initiating action to separate him under the provisions of Paragraph 14-12b, Army Regulation 635-200 (Personnel Separations), by reason of a pattern of misconduct.  He cited the applicant’s arrest by civilian authorities for drunk driving, failure to go to his prescribed place of duty, dishonored checks due to insufficient funds, and failure to repay a debt to a fellow Soldier as the basis for taking the action. 

6.  On 10 January 1989, the applicant acknowledged receipt of the separation action notification, and he completed a statement confirming he had been afforded the opportunity to consult with counsel and had declined this opportunity.  He also elected not to submit statements in his own behalf.  

7.  On 25 January 1989, the separation authority approved the applicant's separation action and directed that he be separated under the provisions of Paragraph 14-12b, Army Regulation 635-200, by reason of a pattern of misconduct, and that he receive a general, under honorable conditions discharge.   

8.  On 7 February 1989, the applicant was separated with a general discharge under honorable conditions after completing a total of 2 years, 2 months, and
25 days of active military service.  The DD Form 214 he was issued shows that he was separated under the provisions of Paragraph 14-12b, Army Regulation 635-200, by reason of misconduct, and that he was assigned an SPD code of “JKM” and a reentry (RE) code of  RE-3.  

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

10.  The applicant provided a list of codes which identifies "JKM" for use when separating an individual for "Misconduct- Sexual Perversion."  This list also shows that "JKK" is used when separating an individual for "Misconduct-Alcohol or other Drug Offenses."

11.  Army Regulation 635-200 (Personnel Separations) 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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-5-1 (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, in pertinent part, that the SPD code of “JKM” was the appropriate code to assign to Soldiers separated under the provisions of Paragraph 14-12b, Army Regulation 635-200, by reason of pattern of misconduct.  The SPD/RE Code Cross Reference Table indicates that RE-3 is the proper code to assign members receiving a “JKM” SPD code.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the SPD code on his DD Form 214 is incorrect was carefully considered and determined to be without merit.

2.  Contrary to the list provided by the applicant, the regulation in effect at the time of his separation clearly shows the SPD code for those individual's separated under the provisions of paragraph 14-12b of Army Regulation 
635-200, by reason of pattern of misconduct is JKM.  Therefore, his records are correct as currently constituted.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 February 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 6 February 1992.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JLP____  _WDP__  __PMS___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.