RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 December 2007
	DOCKET NUMBER:  AR20070008346 


	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

Ms. Judy Blanchard

Analyst

The following members, a quorum, were present:


Mr. John Slone

Chairperson

Ms. Maria Troup

Member

Mr. Thomas Ray

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, that block 24 on his DD Form 214 (Character of Service) be changed to honorable, block 25 (Separation Authority) be changed to Army Regulation 635-200, paragraph 5, block 26 (Separation Code) be changed to JCC, block 27 (Reentry Code) be changed to RE-2 and block 28 (Narrative Reason For Separation) be changed to Early Release – Reduction in Authorized Strength.  

2.  The applicant states, in effect, that his current Certificate of Release or Discharge From Active Duty (DD Form 214) is misleading as to the true nature of the circumstances surrounding his discharge.

3.  The applicant submits in support of his application two letters 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 record shows that he initially enlisted in the Regular Army and entered active duty on 15 November 1990.  He was trained in and awarded military occupational specialty (MOS) 91Q (Pharmacy Specialist).  The highest grade he attained was pay grade E-3.

3.  On 24 January 1992, the applicant unlawfully entered a female Soldier’s room and wrongfully committed an indecent act on her by touching her bare thigh. 

4.  On 31 January 1992, the applicant’s record indicates that he was command referred to have a psychiatric evaluation because of an alleged sleepwalking incident.  The applicant states, that at the time of the alleged sleepwalking incidents, he was aware of what he was doing and where he was going.  He was trying to get away from his room with the intent to “relieve anxiety, fear, and depression”.  He was “seeking escape and comfort” with a woman with whom he desired a closer relationship.  The psychiatrist believes that the applicant had some adjustment problems since being assigned to Germany.  His fiancée reportedly broke off the engagement before he was assigned to Germany.  He disliked his roommate who also had problems adjusting to the Army.  He was having financial problems and believed that he was not accepted by his peers or the church that he recently joined.  Consequently, he felt unhappy and tense.  The psychiatrist found that the applicant was currently experiencing moderate distress in the form of anxiety, somatic symptoms, and depression.  He displayed a reasonable degree of energy, resources for coping and he was prone to anxiety and indecisiveness.  He displayed an attitude of conscientiousness and conformity but failed to follow through effectively on his responsibilities.  He was sensitive to rejection and simultaneously in need of support and encouragement.  It was recommended that the applicant receive supportive therapy, in a group if possible, and stress management techniques aimed at improving his tendency toward psychosomatic symptoms.  

5.  On 5 February 1992, the applicant was admitted into a military hospital for evaluation of an alleged sleepwalking incident and / or associated working disorder.  The applicant reported three episodes in the last three weeks of sleepwalking at night and ending up in other people rooms (the other two incidents are missing from his record).  The applicant explained it by saying he was unhappy in his job with his unit; he felt stressed out and that he has no support.  He is reminded by his roommate’s fighting with his girlfriend of his alcoholic father and the abuse he would give to his mother.  He reported being more comfortable talking with females, so he sought out female co – workers to talk to.  The applicant reported that he was aware of what he was doing during those episodes.  The evaluation further revealed that there was no evidence of depersonalization or derealization; there were no such episodes during the day.  The applicant had a history of doing similar activity in his childhood, when he would go to his sister’s room when he was frightened.  The applicant reported several weeks to months of occasional insomnia, decreased appetite with a 
10 pound weight loss in 5 months, dysphoria, and self recrimination.  The applicant denied suicidal ideation and he reported that in the beginning he enjoyed his job.  The applicant had a history of suicidal ideation from age 14-16.  He considered cutting himself, taking pills or using a weapon.  He had no history of psychiatric treatment.  The applicant spoke at length of his feeling of isolation and alienation in his unit.  He explored various ways he could empower himself, to have more control of his situation.  The applicant was diagnosed with an adjustment disorder with mixed emotional features.  It was ruled out that he had a major depression but he had avoidant personality features.  The psychiatrist believed the applicant did not appear to be at risk to harm himself or others. 

6.  On 21 February 1992, the applicant was counseled for missing formation without authorization.  The applicant was advised that if further conduct continued separation action could be initiated against him and he could receive a less than honorable discharge which could result in him losing some or all of his Army benefits.  The applicant concurred with the counseling session; however, he did not feel that the error was his fault.  He submitted a statement which stated in effect, that he requested a ride to work and a First Sergeant informed him that he would give him a ride with a group of his Soldiers, however, this group never showed up for whatever reason.  He then contacted his unit and informed them of the situation and ultimately, he walked to work. 

7.  On 24 February 1992, the applicant accepted nonjudicial punishment for unlawful entry and indecent act by touching a female Soldier’s bare thigh.  The Article 15 stemmed from the incident on 24 January 1992.  His imposed punishment was a forfeiture of $213.00 pay, 14 days restriction and 14 days extra duty.    

8.  On 2 March 1992, a medical examination found the applicant physically fit for retention.   

9.  On 15 March 1992, the applicant was notified by his unit commander that separation action was being initiated on him under the provisions of chapter 
14 -12c, Army Regulation 635-200, by reason of Misconduct-Commission of a Serious Offense, with a discharge under honorable conditions.  The letter cited the Article 15, for unlawfully entering a room and committing an indecent act on another and for being late to formation which in his opinion showed unwillingness for rehabilitation as the reason supporting the discharge. 

10.  On the same day, the applicant acknowledged receipt of the proposed action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to receiving this counseling, the applicant completed his election of rights by waiving his right to have his case considered by an administrative separation board, and submitted a statement in his own behalf.  The applicant states, in effect, that in spite of the uncooperative and woeful circumstances that he faced, he took the necessary steps to improve his credibility.  In his willingness to serve his country and to show ambition and determination, he consulted with three medical doctors in order to improve his mental readiness to adapt and overcome.  He consulted with one of the doctors about a medication that would improve his overall success in dealing with stresses involved with a first overseas assignment.  He was taking medicine as needed due to some bad side effects.  He consulted with a chaplain who provided some extenuation on his behalf and he attached other merits (attachments are missing from his record) that he made in his brief career.  He asked his command to consider the investment that as already been made in him and to consider that his life term goals would be altered by their decision.  He would lose his GI bill monies and his goal to become a pharmacist for the Army would be over. 

11.  On 16 March 1992, the command’s staff chaplain counseled the applicant and after counseling the applicant he recommended that the applicant be transferred to a new location and his job reinstated.  The chaplain believed that this action would give the applicant the opportunity to excel and develop a healthy relationship towards others and it would be good for the Soldier as well as the command.       

12.  On 20 March 1992, the Commanding General approved the recommendation and directed the issuance of a discharge under honorable conditions (General).  It was further recommended that the rehabilitative requirements be waived.

13.  On 6 April 1992, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 -12c, (2) by reason of misconduct (Commission of a Serious Offense), with a discharge under honorable conditions (general).  The separation document (DD Form 214) he was issued at the time confirms that he held the rank of private first class pay grade E-3, and had completed a total of 1 year, 4 months and 22 days of active military service.  The DD Form 214 also shows that based on the authority and reason for his separation, he was assigned a separation program designator (SPD) code of JKQ and an RE code of RE-3.  

14.  The applicant authenticated this 6 April 1992 DD Form 214 with his signature in Item 21 (Signature of Member Being Separated).  There is no indication that he questioned the SPD or RE codes listed on the separation document at that time.  

15.  Army Regulation 635-200 sets forth the policy 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 serious offense, conviction by civil authorities, desertion, or absences 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.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate, but a general discharge under honorable conditions or an honorable discharge may be granted.

16.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons who are disqualified for continued Army service, however, it is waviable.

17.  Army Regulation (AR) 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.  The SPD code of JKQ is the appropriate code to assign Soldiers separated under the provisions Army Regulation 635-200, chapter 14-12c, by reason of misconduct (Commission of a serious offense).  

18.  Army Regulation 635-200, paragraph 5-3 (Secretarial plenary authority), provides that separation under this paragraph is the prerogative of the Secretary of the Army.  Secretarial plenary separation authority is exercised sparingly and seldom delegated.  Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary's approved designee as announced in updated memorandums.

19.  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 (emphasis added).

20.  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.

21.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions, that his character of service be changed to honorable; that the separation authority be changed to Army Regulation 635-200, paragraph 5; that his separation code be changed to Reduction in Force (JCC); that the reentry code be changed to RE-2 and that the narrative reason for separation be changed to Early Release – Reduction in Authorized Strength were carefully considered and found to have partial merit.  

2.  While the applicant’s act of misconduct is not condoned, the general discharge he received appears to be unduly harsh considering that the applicant was suffering from adjustment problems as indicated by a psychiatrist or a physician trained in psychiatry and there is no evidence in his record which shows that his command tried to rehabilitate him.  The applicant's record does not contain any previous court-martial convictions.  However, he did receive an Article 15 for touching a female Soldier’s bare thigh.  It was determined that the applicant’s general discharge was unduly harsh.  The applicant tried to get help by going to the chaplain, seeking help from psychiatrists or physicians trained in psychiatry and finally he was prescribed medication to resolve the problem.  Nonetheless, particularly, with respect to an honorable characterization of service, the evidence of record shows that “[w]henever there is doubt; it is to be resolved in favor of the individual.”  Therefore, in view of all of the foregoing, as a matter of equity, the applicant’s military service records should be corrected to show that he was honorably discharged, on 6 April 1992; and the authority and reason for discharge be corrected to show Army Regulation 635-200, paragraph 5-3, Secretarial Authority, with an SPD Code of “JFF” and RE Code of “RE-3”, remains as directed.”

3.  Therefore, in view of the foregoing; it would be appropriate to correct the applicant’s record as recommended below.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___S____  ___T____  ___TR__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  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, with an effective date of 6 April 1992, as follows:

Item 24.   CHARACTER OF SERVICE
			Delete:  "Under Honorable Conditions (General)”
Add:	   “Honorable”

Item 25.   SEPARATION AUTHORITY
			Delete:  "AR 635-200, Paragraph 14-12c”
Add:	   “AR 635-200, Paragraph 5-3”

Item 26.   SEPARATION CODE
			Delete:  "JKQ”
Add:	   “JFF”


Item 28.  NARRATIVE REASON FOR SEPARATION				Delete:  "Misconduct-commission of a serious offense”
Add:	   “Secretarial Authority”

e. Issue a DD Form 256A (Honorable Discharge Certificate).


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing block 26 to JCC, Block 28 to Early Release – Reduction in Authorize Strength and Block 27 to 
RE-2.




__     John Slone____________
          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.