IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080004084 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Separation Code on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed.

2.  The applicant states, in effect, that there was no drug involvement related to his discharge.  He was discharged for a pattern of misconduct.  The applicant adds that the reason he is seeking this change is for reenlistment purposes into the Armed Forces.

3.  In support of his request, the applicant provides a copy of his DD Form 214, a copy of two certificates, and a copy of a letter to the applicant's Member of Congress (MOC) from the Director, Personnel Actions and Services, Army Human Resources Command, St. Louis, Missouri.

4.  The applicant's MOC, in this case, has remained silent.  The MOC acted primarily in transmitting the applicant's application to this Board for review.

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 records show he enlisted in the Regular Army on 9 February 1978.  He was honorably discharged, on 10 August 1980, and on 13 May 1986, for the purpose of immediate reenlistment.  The applicant continued to serve on active duty until he was discharged on 30 June 1988.

3.  The evidence shows the applicant was discharged with his service characterized as, under honorable conditions, with a general discharge, in the rank and pay grade of Staff Sergeant, E-6, on 30 June 1988.  The applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, after having served on active duty for 10 years, 4 months and 22 days.  The narrative reason for the applicant's separation on the DD Form 214 is "Misconduct – Pattern of Misconduct."  The Separation Code shown on the applicant's DD Form 214 is, "JKM."  The reenlistment code shown on the applicant's DD Form 214 is "3."

4.  The evidence shows the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 April 1988, for unlawfully hitting a child under the age of 16 on the back with an open hand and for unlawfully striking his spouse in the face with his hand.  The punishment imposed was a reduction to the rank and pay grade, Sergeant, E-5, suspended for 4 months, to be automatically remitted if not vacated before 28 August 1988.  The applicant did not appeal the punishment imposed.

5.  A collection of documents related to the applicant's conduct and discipline is on file in the applicant's service personnel file and is available for the Board's review.  This collection is made up of statements, official reprimand, general counseling forms, clinical/medical records, nursing notes, housing sanitation inspection reports, and includes additional documents related to his discharge from the Army.  None of the many documents in this collection pertained to any involvement with illegal drugs by the applicant.

6.  On 11 May 1988, the applicant's unit commander requested a waiver of rehabilitation transfer.  In his request, the commander stated that in the past year the applicant's conduct did not warrant retaining him in the Army.  The applicant had received numerous letters of indebtedness and telephone messages proclaiming 

indebtedness.  The applicant had received a letter of reprimand, a field grade Article 15, and numerous counseling from all levels of his chain of command.  He summarized by stating that keeping the applicant in the Army would be unfair to good Soldiers and would be a waste of time, money, and effort.

7.  On 23 May 1988, the applicant's unit commander advised the applicant he was initiating action to separate him from the Army for a pattern of misconduct.  He further advised the applicant he was recommending that he receive a general, under honorable conditions, discharge.  The applicant acknowledged the notification on the same date.

8.  On 23 May 1988, the applicant consulted with consulting counsel about the contemplated action to separate him from the Army prior to his normally established expiration of term of service.  The applicant waived consideration of his case by an administrative separation board and elected not to make a personal appearance before an administrative separation board.  The applicant elected not to submit a statement in his own behalf.

9.  A mental status evaluation was conducted on 1 June 1988.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was flat, his thinking process was clear, and his thought content was normal.  The applicant's memory was good. The evaluator, a Behavior Science Specialist, found him to be mentally responsible, considered him to have the mental capacity to understand and participate in separation proceedings and to meet the retention standards of AR 40-501, Chapter 3.  In the remarks section of the DA Form 3822, Report of Mental Status Evaluation, which was prepared to document the evaluation, two entries were made.  The evaluator entered that the "Mental Status Evaluation was within normal limits with no apparent thought disorder noted" and the "Soldier is cleared for any administrative action deemed appropriate by command."

10.  On 1 June 1988, the applicant's commander recommended the applicant be separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b(2), for Pattern of Misconduct.  The specific reason for the recommendation he said was conduct prejudicial to good order and discipline.

11.  On 6 June 1988, the approval authority approved the applicant's discharge for a pattern of misconduct under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b(2), and in addition, waived the request for the applicant's rehabilitative transfer.

12.  The letter to the applicant's Member of Congress (MOC) from the Director, Personnel Actions and Services, Army Human Resources Command, informed him that in accordance with Army Regulation 635-5-1, the narrative reason for Separation Designator Code "JKM" issued at the time of the applicant's discharge was for "a pattern of misconduct" and not, for "drug abuse."

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed 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.

14.  Army Regulation 635-5-1 prescribes the specific authorities (Statutory or other directives), reasons for separating Soldiers from active duty, and the separation program designator (SPD) codes to be entered on the DD Form 214.

15.  Paragraph 14-12b, Army Regulation 635-200, is used for the separation of individuals from the Army for a pattern of misconduct such as discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

16.  Army Regulation 635-5-1, which was in effect on the date of the applicant's discharge, shows that individuals separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b (emphasis added) would have a narrative reason of "Misconduct – Pattern of Misconduct" applied to their DD Form 214.  The appropriate SPD to be used would be, "JKM."

17.  Paragraph 14-12c, Army Regulation 635-200, is used for the separation of individuals from the Army for the commission of a serious offense such as absence without leave, desertion, abuse of illegal drugs, and the commission of a serious military or civil offense.

18.  Army Regulation 635-5-1, which was in effect on the date of the applicant's discharge, shows that individuals separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c (emphasis added) would have a narrative reason of "Misconduct – Commission of a Serious Offense" applied to their DD Form 214.  The appropriate SPD to be used would be, "JKQ."

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows that the applicant's unit commander advised the applicant he was initiating action to separate him from the Army for a pattern of misconduct.  The evidence of record further shows that the applicant acknowledged his commander's intent and the approval authority approved the applicant's discharge for a pattern of misconduct.

3.  The applicant's statement that there was no drug involvement by him related to his discharge and that he was discharged for a pattern of misconduct has merit.  This statement is supported by the collection of documents related to the applicant's conduct and discipline which is on file in the applicant's service personnel file and which is available for the Board's review.  This collection is made up of statements, official reprimand, general counseling forms, clinical/medical records, nursing notes, housing sanitation inspection reports, and includes additional documents related to his discharge from the Army.  None of the many documents in this collection relate to any involvement with illegal drugs by the applicant.

4.  The evidence shows that the separation program designator which corresponds to the narrative reason and authority for the applicant's discharge, at the time of his discharge, "Misconduct – Pattern of Misconduct" was "JKM"

5.  The evidence shows that the separation program designator which corresponds to the narrative reason and authority for those individuals who were discharged for drug abuse involvement, at the time of the applicant's discharge, was "JKQ."

6.  Based on the evidence and applicable regulations, the applicant is not entitled to a change to the separation code now shown on his DD Form 214 from "JKM" to any other separation program designator.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  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.




       _   __x_____   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080004084





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ABCMR Record of Proceedings (cont)                                         AR20080004084



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