IN THE CASE OF:	  

		BOARD DATE:	       2 APRIL 2009

		DOCKET NUMBER:  AR20080018292 


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 that item 25 (separation authority) on his 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show “AR 635-200, Chapter 4,” that item 26 (separation code) be corrected to show an appropriate separation code, that item 27 (reentry code) be corrected to show RE-1, and that item 28 (narrative reason for separation) be corrected to show “Completion of Required Active Service.”

2.  The applicant states, in effect, that his 1991 DD Form 214 is not reflective of the standard of his performance, his capability, commitment, love of country, and desire to serve.  He states since the 1991 discharge he has continued to serve honorably in his community and as a member of the Texas Army National Guard.  He notes he has completed several courses, been awarded various decorations, and deployed in support of Operations Just Cause and “Enduring Mission.”  He cites his various community activities as evidence of his commitment to the country in addition to his military service.  He asks that his 1991 DD Form 214 be corrected so that it more accurately reflects what his service to his country has been and will continue to be.

3.  The applicant provides copies of several separation documents, various training completion certificates, and copies of numerous awards and decorations, all of which detail the applicant’s accomplishments since his 1991 discharge.




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.  Records available to the Board indicate that on 22 June 1989 the applicant enlisted in the Regular Army, in pay grade E-3, for a period of 4 years and 
17 weeks.  He was trained as an infantryman and in October 1989 was assigned to a Ranger unit at Fort Stewart, Georgia.

3.  Between January and August 1990 the applicant was counseled on four different occasions for a variety of infractions, including falling asleep while pulling security duty, writing a dishonored check, disorderly conduct, underage drinking and driving while intoxicated.  

4.  In September 1990 the applicant was reassigned to a headquarters platoon in preparation for being released from the Ranger unit.

5.  Between September 1990 and April 1991 the applicant’s file indicates he was formally counseled on at least 11 occasions for a variety of infractions including his appearance, disobeying orders, being disrespectful towards seniors, threatening a noncommissioned officer (NCO) and writing a bad check.

6.  In August 1990 the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for underage drinking and driving while intoxicated.  He was subsequently punished for breaking restriction and in October 1990 he was punished under Article 15 of the UCMJ for disobeying an order.  In January 1991 he was punished under Article 15 of the UCMJ for making a false statement and absenting himself from his place of duty.  In April 1991 he was punished for driving on post while his driving privileges had been revoked, and writing checks to two Soldiers with insufficient funds to cover the checks.

7.  In January 1991 the applicant’s unit commander imposed a local bar to reenlistment against the applicant after being unable to locate a bar to reenlistment which had been initiated against the applicant in August 1990.

8.  On 16 January 1991 the applicant acknowledged that his unit commander was initiating actions to administratively separate him from the Army for commission of a serious offense under the provisions of Army Regulation 
635-200, Chapter 14.  The basis for the recommendation was the applicant’s disorderly conduct, driving under the influence, rendering false official statements, and attempting to defraud his insurance company.  The applicant consulted with counsel and requested consideration by an administrative separation board.

9.  On 23 April 1991 the applicant and counsel appeared before an administrative separation board.  The board found the commission of a serious offense was supported by a preponderance of the evidence and warranted separation.  The board also concluded the applicant was not desirable for further retention and that rehabilitation was not deemed possible.  The board recommended separation from active duty with an honorable discharge.

10.  The findings and recommendation of the administrative separation board were approved, on 17 July 1991, the applicant was discharged with an honorable characterization of service.  Item 25 on his DD Form 214 reflected “paragraph 14-12c, Army Regulation 635-200,” item 26 reflected “JKQ,” item 27 reflected “RE-3,” and item 28 reflected “Misconduct – Commission of a Serious Offense.”

11.  Documents provided by the applicant indicate that prior to his enlistment in the Regular Army he was enrolled in a Reserve Officers' Training Corps (ROTC) program and successfully completed airborne training and participated in an ROTC Camp Challenge for which he was commended. 

12.  During his period of active duty between 1989 and 1991 the applicant was deployed to Panama where he participated in a combat parachute jump, was awarded a Combat Infantryman Badge, and an Armed Forces Expeditionary Medal.

13.  In 1996, subsequent to the applicant’s discharge from active duty in 1991, he returned to military service as a member of the Texas Army National Guard.  While in the Army National Guard, the applicant served in Bosnia, was awarded an Army Good Conduct Medal, an Army Achievement Medal, the Army Reserve Component Achievement Medal, completed several training courses and received a number of certificates of appreciation.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

15.  Army Regulation 635-5-1 (SPD Codes), then in effect, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPDs to be used for these stated reasons.  The regulation showed that the SPD code "JKQ" as shown on the applicant’s DD Form 214 was the appropriate code when the authority for separation was paragraph 14-12c, AR 635-200 and the narrative reason for discharge was misconduct-commission of a serious offense.
 
16.  The SPD/RE Code Cross-Reference Table, dated 1989, shows that the appropriate RE code for the SPD code of JKQ is RE-3.

17.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), provides that RE-3 applied to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, it is apparent that the applicant's discharge was based on his overall performance during his period of military service.  The fact that he was given an honorable discharge suggests that the administrative separation board and the separation authority likely considered the applicant’s combat deployment and awards when determining the characterization of service the applicant would receive.

2.  In the absence of evidence that the applicant’s administrative separation was in error or unjust there is no basis to change the authority for separation (item 25), the separation code (item 26), the reentry code (item 27), or the narrative reason for separation (item 28).

3.  The applicant's contentions regarding his post service achievements and conduct were considered.  However, good post service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.

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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request

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.




      _______ _   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)                                         AR20080018292



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ABCMR Record of Proceedings (cont)                                         AR20080018292



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