IN THE CASE OF:	  

		BOARD DATE:	        5 February 2009

		DOCKET NUMBER:  AR20080016061 


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 the phrase "CHAPTER 2  AR 635-200  SPD  JBKK" be removed from his DD Form 214 (Report of Separation from Active Duty).

2.  The applicant states, in effect, much time has passed and he has become a successful person.

3.  The applicant provides three statements of support from family and friends.

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 enlisted in the Regular Army for 3 years and training in Army Career Group 91 (Medical Care and Treatment) on 13 March 1972.

3.  On 16 December 1974, the applicant reenlisted for 4 years and assignment to the Military District of Washington (District of Columbia).  He was subsequently assigned to Walter Reed Army Medical Center (WRAMC), Washington, DC.

4.  The applicant's records contain three records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  failure to obey a lawful order on 2 October 1972 and 6 October 1972, for which he received a forfeiture of $100.00 pay per month for 2 months and 15 days of restriction and extra duty;

	b.  being absent without leave (AWOL) from his place of duty from 9 May 1975 to 13 May 1975, for which he received a forfeiture of $50.00 pay per month for 1 month; and

	c.  willfully disobeying the lawful command of a general officer on 24 February 1976, for which he received a reduction in rank from specialist/E-4 to private first class/E-3.

5.  The applicant received a bar to reenlistment on 9 March 1976.  The bar cited the three NJPs which occurred on his current enlistment, as well as counseling statements, traffic violations, and improper behavior as justification.  The bar was periodically reviewed and allowed to remain in effect.

6.  The applicant was discharged on 11 December 1978.  A memorandum addressed to the applicant and dated 11 December 1978 states, "The reason for your separation from active duty on 11 December 1978 is:  Completion of required service."  The memorandum cites Army Regulation 635-200 (Personnel Separations) as the authority.  The memorandum is signed by the Assistant Adjutant, WRAMC.

7.  The applicant’s DD Form 214 shows he was honorably discharged on 11 December 1978 after serving a total of 6 years, 8 months, and 24 days of creditable active Federal service with 5 days of lost time due to AWOL.  The DD Form 214 shows he was separated under the provisions of chapter 2, Army Regulation 635-200 with a separation program designator (SPD) code of "JBKK" (sic).

8.  Army Regulation 635-200 provides the policy and sets forth the procedure for administrative separation of enlisted personnel.  Chapter 2 of the regulation then in effect was entitled "Procedures for Separation" and was not one of the chapters to be cited as authority for separation.  Chapters 4 through 15 were the chapters cited as authority for separation.  Chapter 4 was used for Soldiers separated or discharged upon "completion of required service."

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time specified that item 9c of the DD Form 214 (Authority and Reason) would reference the appropriate regulation, circular, bulletin, special separation directive, statute, etc., followed by the SPD code.

10.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD code JBK was used for Regular Army Soldiers ineligible for, barred from, or otherwise denied reenlistment that are separated on completion of enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests item 9c on his DD Form 214 be deleted.

2.  Army regulations require the appropriate authority and reason for separation and/or discharge from active duty be entered in the appropriate section on the DD Form 214.  In the applicant’s case, this information is required in item 9c.

3.  The applicant had a valid bar to reenlistment in effect against him when he was discharged.  He was discharged at the end of his term of service.  The appropriate authority and reason cite should have been "CHAPTER 4  
AR 635-200  SPD  JBK."  This would signify discharge by reason of expiration of term of service (chapter 4, Army Regulation 635-200) which occurred involuntarily (JBK) because of the applicant’s bar to reenlistment.

4.  The applicant’s DD Form 214 cites as authority and reason, "CHAPTER 2  
AR 635-200  SPD  JBKK."  This is incorrect; chapter 2 is not one of the valid chapter cites for the authority and reason for separation, nor is "JBKK" a valid SPD code.  These entries should be corrected.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  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 deleting from item 9c of his DD Form 214 the entry "CHAPTER 2  AR 635-200  
SPD  JBKK"  and adding the entry "CHAPTER 4  AR 635-200  SPD  JBK."

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 completely deleting the entry in item 9c without replacement.


																XXX
      _________________________
                 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)                                         AR20080016061





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ABCMR Record of Proceedings (cont)                                         AR20080016061



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