RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 January 2008
DOCKET NUMBER: AR20070012515
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Hubert O. Fry, Jr.
Chairperson
Mr. John T. Meixell
Member
Mr. Rowland C. Heflin
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 the reason for his discharge be changed from misconduct to medical.
2. The applicant states that it is only just to do right by a Soldier who was injured during his service to his country.
3. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 31 January 2002, the applicant enlisted in the Regular Army. He was awarded military occupational specialty 88H1O (Cargo Specialist).
3. On 3 April 2002, the applicant was absent without leave (AWOL) and remained absent until his return to military control on 1 August 2002 (120 days).
4. The discharge packet is missing from his military records. However, his Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was administratively discharged on 5 March 2003, under the provisions of Army Regulation 635-200, Chapter 14, for misconduct. Accordingly, he was given a Separation Program Designator (SPD) Code of JKA (pattern of misconduct) and an RE Code of 3. His service was characterized as under honorable conditions. His rank was private, pay grade E-1. He had completed
9 months and 4 days of creditable active duty during this period of service.
5. 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 that could result in a punitive discharge, 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.
6. 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. The SPD code of JKA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, for a pattern of misconduct. Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.
7. The applicant's medical records are not available for review. There is no available evidence of record showing that he was injured while serving on active duty.
8. Title 10, United States Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30 percent disabling. It further provides at section 1201, for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time
2. The available evidence of record clearly shows that the applicant went AWOL for 120 days. This substantiates, at least in part, his misconduct.
3. There is no available evidence showing that the applicant was injured on active duty or that he was found to be unfit for duty due to a physical disability.
4. 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
__HOF __ __RCH__ __JTM___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
____ Hubert O. Fry, Jr.___
CHAIRPERSON
INDEX
CASE ID
AR20070012515
SUFFIX
RECON
DATE BOARDED
20080117
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20030305
DISCHARGE AUTHORITY
AR .635-200 . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
145
2.
3.
4.
5.
6.
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