IN THE CASE OF:	  

		BOARD DATE:	        2 April 2009

		DOCKET NUMBER:  AR20090000258 


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 correction of his separation code.

2.  The applicant states that the separation code he was given is not justifiable and does not correspond with his character of service. 

3.  The applicant provides copies of his initial and reissued DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 25 August 2003, and a complete copy of the Army Discharge Review Board (ADRB) Case Reports and Directives, dated 15 July 2005 and 10 August 2006, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 25 November 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).  He also executed two additional reenlistments in the Regular Army, on 19 March 1998 and on 17 October 2000.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.  

2.  The applicant’s records also show he served in Kuwait from 15 November 1992 to 30 May 1993; Bosnia from 15 December 1995 to 15 November 1996; and Sarajevo from 10 July 1997 to 20 November 1997.  His awards and 

decorations include the Army Commendation Medal (2nd Award), the Army Achievement Medal (5th Award), the Armed Forces Service Medal, the Good Conduct Medal (2nd Award), the National Defense Service Medal (2nd Award), the Southwest Asia Service Medal, the Noncommissioned Officer Professional Development Ribbon with Numeral 2, the Army Service Ribbon, the Overseas Service Ribbon, the NATO Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Driver and Mechanic Badge with Driver-A Bar, and the Zaire Military Parachutist Badge.  

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 28 August 2001, for violation of a lawful general regulation by wrongfully using his government credit card; 

	b.  on 1 July 2002, for seven instances of failing to go at the time prescribed to his appointed place of duty, one instance of willfully disobeying a lawful order from a superior noncommissioned officer (NCO), and two instances of uttering bad checks; 

	c.  on 6 November 2002, for one instance of being absent from his appointed place of duty and three instances of failing to go at the time prescribed to his appointed place of duty; and 

	d.  on 31 March 2003, for two instances of failing to go at the time prescribed to his appointed place of duty and two instances of failing to obey a lawful order from a superior NCO.

4.  On 1 April 2003, the applicant’s immediate commander notified the applicant of initiation of separation action against him in accordance with paragraph        14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct-pattern of misconduct, with a characterization of service of general, under honorable conditions.  

5.  The applicant subsequently acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for misconduct and its effect; of the rights available to him and the effect of any action taken by him in waiving his rights; and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that he could expect to encounter substantial prejudice in civilian life 

if a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further waived consideration of his case by an administrative separation board contingent on receiving a characterization of service no less favorable than honorable.

6.  The General Court-Martial convening authority disapproved the applicant’s conditional waiver and referred the case to an administrative separation board during which the applicant appeared in person with his counsel.  The board recommended his discharge with a characterization of service of general under honorable conditions.  

7.  On 7 August 2003, the separation authority approved the findings and recommendation of the administrative separation board and directed the applicant be discharged with a characterization of service of general under honorable conditions.  Accordingly, the applicant was discharged on 25 August 2003.  The DD Form 214 he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed a total of 10 years, 9 months, and 1 day of creditable active military service.  Item 25 (Separation Authority) of this form shows the entry “AR 635-200, paragraph 14-12c” and item 26 (Separation Code) shows the entry “JKQ.”

8.  On 15 July 2005, the Army Discharge Review Board (ADRB) denied the applicant’s petition for a change in the character of his service and/or reason for his discharge.

9.  On 10 August 2006, the ADRB reviewed the applicant’s request for reconsideration and granted him relief in the form of an upgrade of the characterization of service to fully honorable.  However, the ADRB determined that the narrative reason for the discharge was both proper and equitable and voted not to change it.  

10.  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 prescribed 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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time showed that the SPD code "JKQ" specified the narrative reason for separation as an involuntary discharge for "Misconduct.” 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation code should be corrected so it corresponds with his upgraded character of service.  

2.  The evidence of record shows that the applicant was charged with a pattern of misconduct and was notified of the initiation of separation action.  He acknowledged receipt of the notification and requested an administrative separation Board.  Accordingly, a board convened and reached a unanimous decision and recommended to the approving authority that the applicant be separated from the Army with a general characterization of service.  The separation authority approved the board’s recommendations and directed immediate discharge.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record confirms that the applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 14-12c of Army Regulation 635-200 due to misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct."  The appropriate separation code associated with this type of discharge is “JKQ.” 

4.  The ADRB, as a matter of equity, changed the applicant's discharge to fully honorable.  However, the ADRB voted not to change the narrative reason for separation.  The applicant has provided insufficient evidence to show why this Board should change it.  Therefore, the JKQ separation code remains the appropriate code associated with the applicant’s discharge.  

5.  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.  Therefore, he is not entitled to relief.

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)                                         AR20090000258



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ABCMR Record of Proceedings (cont)                                         AR20090000258



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