RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 August 2007
	DOCKET NUMBER:  AR20070001920 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Conrad V. Meyer

Chairperson

Mr. Dale E. DeBruler

Member

Ms. Ernestine I Fields

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, in effect, that the reason for his discharge be changed from misconduct to something positive and that his under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he truly regrets the offenses he is guilty of and that he did not take responsibility for his actions at the time.  He also states that he always wanted to be a police officer, which is the reason why he was a Military Policeman in the U.S. Army.  He further states that he recently graduated from a Pennsylvania Police Academy; however, he is unable to fulfill his dream because he can not obtain a job due to the reason for his separation.  The applicant concludes by stating, in effect, that he was always an outstanding Soldier, never had any disciplinary problems prior to this incident, and that he has been punished time and time again for this incident.

3.  The applicant provides no additional documentary evidence in support of his application.

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's military service records show that he enlisted in the U.S. Army Reserve on 30 June 1992 and entered active duty in the Regular Army (RA) for a period of 3 years on 20 January 1993.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 95B (Military Policeman).  The applicant reenlisted for a period of 4 years on 5 June 1997.  The highest rank the applicant attained while serving on active duty was sergeant (SGT)/pay grade (E-5).  At the time of his discharge the applicant completed 1 year, 11 months and 23 days net active service during the period under review and 6 years, 4 months, and 8 days total active service.
3.  The applicant’s military service records contain a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 13 August 1998.  This document shows that non-judicial punishment was imposed by the unit commander against the applicant for, on or about 26 June 1998, willfully disobeying a lawful order from a noncommissioned officer, an order which it was the applicant’s duty to obey, to refrain from having personal contact with Sergeant J_______ A. S_____.   His punishment consisted of a forfeiture of $100.00 (suspended, to be automatically remitted if not vacated before 12 November 1998) and 7 days extra duty (suspended, to be automatically remitted if not vacated before 12 November 1998).

4.  The applicant’s military service records contain a copy of a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 29 October 1998.  This document shows that the suspension of the punishments of a forfeiture of $100.00 and 7 days extra duty imposed on the applicant on 
13 August 1998 were vacated by the unit commander and the unexecuted portions of the punishments were ordered duly executed.  This document also shows that the vacation was based on the applicant having received a lawful order from two noncommissioned officers to refrain from having personal contact with Sergeant J_______ A. S_____, an order which it was the applicant’s duty to obey, and he did willfully disobey the same, on or about 16 October 1998.

5.  The applicant’s military service records contain a copy of a DA Form 2627, dated 4 February 1999.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for, on or about
23 January 1999, willfully disobeying a lawful order from a noncommissioned officer, an order which it was the applicant’s duty to obey, to have no contact with Sergeant S_____ outside of the workplace, no type of personal relationship whatsoever, and not use any Soldier as a ‘go between’ to pass messages to Sergeant S______.  This document also shows that the applicant requested a closed hearing and that matters in defense, mitigation, and/or extenuation were provided by the applicant to the commander; however, a person to speak in his behalf was not requested.  Subsequent to the closed hearing and consideration of all matters presented in defense, mitigation, and/or extenuation, the commander imposed punishment against the applicant that consisted of reduction to specialist/pay grade (E-4) and 30 days of extra duty.  The DA Form 2627 shows that the applicant appealed the Article 15 punishment and, in a document dated 8 February 1999, asserted that he was not guilty of the alleged misconduct and presented matters in defense.  The DA Form 2627 further shows that on 23 February 1999, the major general serving as Commander, U.S. Army War College and Carlisle Barracks, Carlisle, Pennsylvania, denied the applicant’s appeal.
6.  On 3 May 1999, the unit commander notified the applicant that separation action was being initiated on him under the provisions of Army Regulation
635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct and that he was recommending the applicant receive an other than honorable discharge.  The applicant was also advised of his rights.  The reasons for the proposed action were displaying an unacceptable disregard for professional conduct, highlighted by several instances of failure to obey lawful orders; specifically, not to have any contact with a married Soldier in the command.  The commander's recommendation for separation also included, in pertinent part, two DA Forms 2627, dated 13 August 1998 and 23 February 1999, with allied documents, and a DA Form 4856 (General Counseling Form), dated 25 February 1999.

7.  On 4 May 1999, the applicant consulted with legal counsel.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, and of the rights available to him. He requested consideration of his case by an administrative separation board, personal appearance before an administrative separation board, representation by counsel, and he submitted statements in his own behalf.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant was advised he may be furnished a separation under other than honorable conditions; that he may be ineligible for many or all benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge/character of service which is less than honorable.

8.  On 5 May 1999, the applicant provided a request for conditional waiver for separation under Army Regulation 635-200, Chapter 14, paragraph 14-12b.  The applicant again acknowledged with his signature that he had been advised by consulting counsel of the basis for the contemplated separation action and its effects, of the rights available to him, and the effect of any action taken by him in waiving his rights.  The applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a discharge no less favorable than General Under Honorable Conditions.  By waiving his right he was not requesting to be separated from the Army and acknowledged that, if he were separated, such separation would be involuntary.  The applicant indicated that he understood he may expect to encounter substantial prejudice in civilian life if he was issued a general discharge under honorable conditions.  In addition, the applicant indicated that he understood that if he received a discharge/character of service which is less than honorable, he could make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrade; however, an act of consideration by either board does not imply that his discharge will be upgraded.

9.  The unit commander subsequently recommended the applicant’s separation from service, indicating that the applicant displayed an unacceptable disregard for professional conduct, highlighted by several instances of failure to obey lawful orders when specifically told not to have any contact with a married Soldier in the command; a persistent disrespect for authority; and unwillingness to overcome his deficiencies.  The commander also indicated that the applicant had been counseled on his actions and that efforts at rehabilitation have proven futile. The unit commander recommended separation of the applicant with a general under honorable conditions discharge.

10.  On 10 May 1999, the battalion commander reviewed the proposed discharge action and recommended that the requirement for a rehabilitative transfer be waived.  He also recommended approval of the separation action with a general under honorable conditions discharge certificate.

11.  On 10 May 1999, the separation authority approved the recommendation for separation, waived the requirement for a rehabilitative transfer, and directed that the applicant be discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for a pattern of misconduct and that he be issued a general under honorable conditions discharge certificate.  Accordingly, the applicant was discharged on 27 May 1999.

12.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant on the date of his separation, contains the separation authority, narrative reason for separation, separation code, and character of service pertaining to the applicant's discharge.  This document shows that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 14-12b, and the narrative reason for his separation was "Misconduct.  Based on the authority and reason for his separation, the applicant was assigned a Separation Program Designator (SPD) Code of “JKA.”  This document also confirms that the applicant was issued a General Under Honorable Conditions Discharge.  However, this document is overwritten with the word “VOID.”


14.  On 18 May 2004, the applicant applied to the Army Discharge Review Board (ADRB) for a change of reason and recharacterization of his discharge.  On
28 January 2005, the ADRB reviewed the records of the applicant, along with the regulation in effect at the time of discharge and determined that the applicant was properly, but not equitably discharged.  In arriving at this conclusion, the ADRB took into consideration all faithful and honorable service, as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The ADRB noted that, while the Board does not condone the applicant’s misconduct, it determined that the characterization of service is now inequitable.  Accordingly, the Board voted to grant partial relief in the form of an upgrade of characterization of service to fully honorable.  However, the ADRB found that the reason for separation was fully supported by the record and voted not to change it.

15.  The applicant’s military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant based on the findings and conclusions of the ADRB.  This document shows that the authority for the applicant’s separation was Army Regulation 635-200, paragraph 14-12b, and the narrative reason for his separation was "Misconduct.  Based on the authority and reason for his separation, the applicant was assigned a SPD Code of “JKA.”  Item 18 (Remarks) of the DD Form 214 contains, in pertinent part, the entry, “CHARACTERIZATION OF SERVICE UPGRADED 28 JANUARY 2005 FOLLOWING APPLICATION DATED 18 MAY 2004.”  The DD Form also shows that the applicant was issued an Honorable Discharge.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 (Separation for Misconduct) establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  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.

17.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

18.  Army Regulation 635-200, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

19.  Army Regulation 635-5-1 (Separation Program Designator (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 identifies the SPD Code of “JKA” as the appropriate code to assign RA enlisted Soldiers who are separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, based upon misconduct.

20.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the reason for his discharge should be changed from misconduct to something positive and that his under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows that on 28 January 2005, the ADRB voted to grant partial relief to the applicant’s request in the form of an upgrade of the characterization of his service to fully honorable.  The evidence of record also shows that applicant’s original DD Form 214 was voided by the ADRB and a new DD Form 214 was issued to the applicant based on the findings and conclusions of the ADRB.  The evidence of record further shows that this DD Form 214 shows the applicant’s character of service was upgraded to “honorable.”  Thus, no further action is required by this Board with respect to the applicant’s request for recharacterizaton of his service.

3.  The evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time.  In addition, on 28 January 2005, the ADRB found that the reason for the applicant’s separation was fully supported by the record and voted not to change it.  Therefore, lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows during the period of service under review, the applicant demonstrated a pattern of misconduct by displaying an unacceptable disregard for professional conduct, highlighted by several instances of failure to obey lawful orders when specifically told not to have any contact with a married Soldier in the command; a persistent disrespect for authority; and unwillingness to overcome his deficiencies.  In this regard, there is no evidence of record, and the applicant provides insufficient evidence, to substantiate his claim that his discharge based on misconduct should be changed.  Therefore, the applicant is not entitled correction of his records to show a change to the reason for his discharge.

5.  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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____CVM   ___DED_  ___ERM _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.




_____Conrad V. Meyer______
          CHAIRPERSON




INDEX

CASE ID
AR20070001920
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/08/21
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19990527
DISCHARGE AUTHORITY
AR 635-200, Paragraph 14-12b
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.