IN THE CASE OF:	  

		BOARD DATE:	        9 September 2008

		DOCKET NUMBER:  AR20080011501 


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 his discharge under other than honorable conditions be upgraded.  He also requests that his narrative reason for separation be changed.  

2.  The applicant states, in effect, that he feels he served his three year obligation honorably.  He would also like his narrative reason for separation be changed to medical or completion of required active service. 

3.  In a letter, dated 7 July 2008, from a Member of Congress, it states that the applicant has tried to have his records corrected due to an error entered into the military/veterans information system regarding his discharge from the Army.  The applicant provided a DD Form 214 for the period ending 16 January 2002 which shows he received an honorable discharge.  However, he learned several years ago that someone in the Department of Veterans Affairs possibly entered his discharge as other than honorable.   

4.  The applicant provides letters, dated 18 April 2008 and 7 July 2008, from a Member of Congress; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 August 1998; a NGB [National Guard Bureau] Form 22E (Report of Separation and Record of Service); a DD Form 214 for the period ending 16 January 2002 which shows he received an honorable discharge; and a copy of his Army Discharge Review Board (ADRB) Proceedings.


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.  Having prior inactive service, the applicant’s enlistment contract shows he enlisted in the Regular Army on 30 September 1998 for a period of 3 years.  

3.  The applicant went absent without leave (AWOL) on 30 October 2000 and was apprehended by civil authorities and returned to military control on 
19 September 2001.  

4.  On 9 October 2001, nonjudicial punishment was imposed against the applicant for desertion (30 October 2000 to 19 September 2001).  His punishment consisted of a reduction to E-1.     

5.  The applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  On 14 November 2001, he consulted with counsel and waived his rights.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge was issued and he further acknowledged that as the result of the issuance of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and that he might expect to encounter substantial prejudice in civilian life.  He also elected not to submit a statement on his own behalf.        

6.  The unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (commission of a serious offense).  He cited that the applicant deserted the Army in October 2000 with no intent on returning.  He recommended that the applicant receive an other than honorable discharge.

7.  The intermediate commander recommended that the applicant be discharged with a general discharge.

8.  On 17 December 2001, the separation authority approved the recommendation for discharge and directed the issuance of an under other than honorable conditions discharge.

9.  Accordingly, the applicant was discharged under other than honorable conditions on 16 January 2002 under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c(1), for misconduct (commission of a serious offense).  He had served a total of 3 years, 2 months, and 24 days of creditable active service with 319 days of lost time.  This DD Form 214 erroneously shows he entered active duty on 13 April 1998.     

10.  Item 25 (Separation Authority) on the applicant's DD Form 214 for the period ending 16 January 2002 contained in his service personnel records shows the entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(1).”  Item 
26 (Separation Code) on this DD Form 214 shows the entry, "JKD."  Item 
28 (Narrative Reason for Separation) on this DD Form 214 shows the entry, "MISCONDUCT.”  Item 24 (Character of Service) shows he was honorably discharged.

11.  On 28 September 2007, the ADRB denied the applicant’s request for an honorable discharge and his request for a narrative reason change.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c(1) of this regulation states that an absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

13.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  


14.  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.

15.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKD is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(1).  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was discharged for misconduct due to commission of a serious offense (desertion).  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or honorable discharge.

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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

3.  The evidence of record shows that the applicant’s intermediate commander recommended he be separated with a general discharge; however, the approval authority directed he received a discharge under other than honorable conditions. 

4.  Even though the applicant’s DD Form 214 erroneously shows he was discharged with an honorable characterization of service, the actual type of discharge (i.e., under other than honorable conditions) directed and the reasons therefore were appropriate considering all the facts of the case.

5.  The applicant’s narrative reason for separation was administratively correct and in conformance with applicable regulations.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ___xx___  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.




      _______ _ xxxx_____   ___
               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)                                         AR20080011501





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ABCMR Record of Proceedings (cont)                                         AR20080011501



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