RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	  22 May 2007
	DOCKET NUMBER:  AR20070000040 


	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

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry, Jr.

Chairperson

Mr. Thomas E. O'Shaughnessy, Jr.

Member

Mr. James R. Hastie

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 reason for his discharge under honorable conditions.

2.  The applicant states that he was charged with adultery and not for drug abuse as shown on his Certificate of Release or Discharge from Active Duty (DD Form 214).  He further states that there was never a drug issue at any time while he was in the service.

3.  The applicant provides a copy of his DD Form 214 and DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 8 May 1987, the date of his discharge.  The application submitted in this case is dated 13 December 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.  On 20 March 1985, the applicant enlisted in the Regular Army for 3 years.   He completed basic combat training and was assigned for advanced individual training as a 67V1O (Observation/Scout Helicopter Repairer).  He did not complete this training.  He was next assigned for training as a 76Y1O (Unit Supply Specialist).   He successfully completed this training.

4.  On 26 November 1985, the applicant was assigned for duty as a supply specialist with the 1st Battalion, 13th Armored Regiment, 1st Armored Division, in the Federal Republic of Germany.

5.  On 1 February 1986, the applicant was promoted to private first class, pay grade E3.


6.  On 30 September 1986, the applicant was cited for hitting a pedestrian with his privately owned vehicle. 

7.  On 1 November 1986, the applicant was cited for allowing another individual to operate a motor vehicle without a valid operator’s license.

8.  On 4 December 1986, the applicant was notified that his check cashing privileges had been suspended for 3 years.  The notification listed nine dishonored checks written by the applicant during the preceding 12 months.   

9.  On 30 December 1986, the applicant’s motor vehicle operator’s license was suspended.

10.  On 15 January 1987, the applicant was counseled for dereliction of duty.

11.  On 1 February 1987, the applicant’s commander bared him from reenlistment based on adultery, failure to obey a lawful general order, and poor duty performance.

12.  On 19 February 1987, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

13.  In March 1987, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for adultery.  The punishment included reduction to private, pay grade E1, a forfeiture of $320.00 per month for 2 months, and 45 days restriction and extra duty.

14.  On 18 March 1987, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 14, for a pattern of misconduct, including adultery, dishonored checks, and indebtedness.  The applicant had been counseled several times concerning his poor duty performance.  The commander further recommended waiver of rehabilitation requirements because further retention on active duty would create serious disciplinary problems and would not be in the interest of the United States Army as it would not produce a quality Soldier. 

15.  On 24 March 1987, the applicant consulted with counsel concerning his rights and elected not to make a statement in his own behalf.  

16.  On 2 April 1987, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate, under honorable conditions.

17.  Accordingly, on 8 May 1987, the applicant was discharged under honorable conditions.  He had completed 2 years, 1 month and 19 days of creditable active service.

18.  The applicant’s DD Form 214 indicates in Item 25 (Separation Authority) "Army Regulation 635-200, paragraph 14-12c"; Item 26 (Separation Code) indicates "JKK"; and Item 28 (Narrative Reason for Separation) indicates "Misconduct-Drug Abuse."  

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

20.  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.  At that time, paragraph 14-12a authorized separation for minor disciplinary infractions-a pattern of misconduct consisting solely of minor military disciplinary infractions.  Paragraph 14-12c was to be used for the commission of a serious offense, conviction by civil authorities (if the specific circumstances of the offense warrant separation and a punitive discharge is authorized for the same or a closely related offense under the Manual for Courts-Martial), absence without leave, or other actions that a punitive discharge is authorized under the UCMJ.  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 conditions is normally considered appropriate.

21.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) shows that code JKK means misconduct under Army Regulation 635-200, paragraph 14-12c, for drug abuse.  SPD JKN means misconduct under Army Regulation 635-200, paragraph 14-12a, for minor infractions.

22.  Army Regulation 27-10(Military Justice) paragraph 3-2 (Use of nonjudicial punishment) states that "A commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment.  Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that nonjudicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken."

DISCUSSION AND CONCLUSIONS:

1.  The record shows the applicant had his check cashing privileges suspended and his driving privileges suspended.  He was counseled for poor duty performance, and the nonjudicial punishment shows his adultery was handled as a minor offense.   Clearly, these are minor disciplinary infractions. 

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  However, the applicant's DD Form 214 is in error.  He was not processed for separation for misconduct due to drug abuse under Army Regulation 635-200, paragraph 14-12c.  Rather, he was processed under Army Regulation 635-200, paragraph 14-12a for minor military disciplinary infractions.  Therefore, his DD Form 214 should be corrected.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 8 May 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
7 May 1990.  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:

__JRH __  __HOF __  __TEO__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his DD Form 214 to show "AR 635-200, Para 14-12a" in block 25, "JKN in block 26, and "Misconduct-Minor disciplinary infractions" in block 28.






__Hubert O. Fry, Jr.____
          CHAIRPERSON




INDEX

CASE ID
AR2007000040
SUFFIX

RECON
 
DATE BOARDED
20070522 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
110.0200.0000
2.

3.

4.

5.

6.