IN THE CASE OF:	  

		BOARD DATE:	        28 MAY 2009

		DOCKET NUMBER:  AR20090002550 


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 his separation code of "JKK" (sic) be changed.

2.  The applicant states that he did not commit any drug-related misconduct.  

3.  The applicant does not provide any additional documents in support of his application.

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.  After having had prior service in the U.S. Army Reserve (USAR), the applicant enlisted in the Regular Army (RA) on 20 February 1986.  

3.  The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on 3 June 1987 and 24 August 1987 for the following offenses: (1) absent without leave (AWOL) from 22 May 1987 to 26 May 1987; (2) disobeying a lawful command from a captain; (3) wrongfully and willfully impersonating a noncommissioned officer of the Army by publicly wearing the uniform and insignia of the rank of a corporal; (4) wrongfully and willfully impersonating a noncommissioned officer of the Army by publicly wearing the uniform and insignia of rank of a sergeant; (5) wrongfully and without authority wear upon his uniform an Expert Field Medical Badge, Aircraft Crewman Badge, Jungle Expert Badge, and Ranger Tab with 1st Battalion Scroll; (6) wrongfully and without authority wear upon his uniform an Expert Field Medical Badge, Jungle Expert Badge, and Army Aviator Badge; (7) wrongfully and without authority wear upon his uniform a Special Forces Tab, Army Aviator Badge, and Senior Parachutist Wings; and (8) wrongfully and without authority wear upon his uniform a Special Forces patch and tab, Special Forces crests on both epaulets, a maroon and white braided fourragere, Jungle Expert Badge, Canadian Jump Wings, Combat Medical Badge, Pathfinder Badge, Senior Parachutist Wings with one star for a combat jump, Combat Infantryman Badge, and ribbons representing the Army Achievement Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Armed Forces Expeditionary Medal with Arrowhead, Good Conduct Medal, Army Commendation Medal with Second Oak Leaf Cluster, Air Medal, Joint Staff Commendation Medal with "V" Device, Meritorious Service Medal, and the Soldier's Medal.  

4.  The applicant's discharge packet is not contained in the available records.  However, his DD Form 214 shows he was discharged from active duty on
22 December 1987 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c by reason of misconduct- commission of a serious offense with issuance of an under other than honorable conditions discharge.  He completed 1 year, 9 months, and 29 days of creditable service with 4 days of lost time.  He was given a Separation Program Designator (SPD) code of "JKQ" (Misconduct-Commission of a Serious Offense).

5.  On 5 February 1992, the Army Discharge Review Board denied the applicant's request for a change in the character and/or reason of his discharge.

6.  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.

7.  Army Regulation 635-5-1 (SPD 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 shows that the separation program designator “JKQ” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Misconduct-Commission of a Serious Offense” and that the authority for discharge under this separation program designator is “Army Regulation 635-200, Chapter 14-12c."  

8.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 (Narrative Reason for Separation) will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his separation code of "JKK" be changed is noted.  However, his DD Form 214 shows he was discharged from active duty with a separation code of "JKQ" (Misconduct-Commission of a Serious Offense) and not "JKK" (Misconduct-Abuse of Illegal Drugs) in accordance with the governing regulation in effect at the time.

2.  In the absence of evidence to the contrary it is presumed that the applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 14-12c were conducted in accordance with law and regulations applicable at the time.

3.  In accordance with the preparation instructions for item 28 of the DD Form 214, the narrative reason for separation is taken from Army Regulation 635-5-1.  Therefore, the correct narrative reason for separation as provided in Army Regulation 635-5-1 was properly entered on his DD Form 214.

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)                                         AR20090002550



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ABCMR Record of Proceedings (cont)                                         AR20090002550



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