IN THE CASE OF:	  

		BOARD DATE:	  11 June 2009

		DOCKET NUMBER:  AR20090002704 


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 narrative reason for separation be changed and that his general discharge be upgraded to honorable. 

2.  The applicant states that there was no pattern of misconduct during his enlistment period.  He contends that his general discharge is inequitable because it was based on one isolated incident that occurred after 32 months of exemplary service with no incidents or disciplinary actions.  He goes on to state that from the date of his enlistment on 16 October 1985 until June 1988 he served honorably with no disciplinary actions or incidents, that he was very proficient in his military job, that he attained the rank of specialist four, and that he earned the Expert Infantryman Badge.  He indicates that in June 1988 it was alleged that he assisted a fellow Soldier obtain illegal drugs; however, this allegation was untrue.  Nevertheless, he was intimidated into accepting company punishment and was reduced to E-1 and restricted to the company area for 30 days.  He claims that towards the end of his 30-day restriction period he left the company area to purchase toiletries and that he does not feel this action demonstrates a pattern of misconduct or that he should have received a general discharge.

3.  The applicant further states that since his discharge he has been a hard working good citizen, that he has never been convicted of a crime, and that he has maintained the same profession for 20 years (journeyman painter).  He claims that due to the economy he would like to pursue a career in law enforcement and the general discharge is having an adverse effect on his career change.  

4.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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.  The applicant enlisted in the Regular Army on 16 October 1985 for a period of 3 years.  He successfully completed One Station Unit Training and basic airborne training in military occupational specialty 11B (infantryman).  

3.  On 17 December 1987, the applicant appeared in District Court on charges of No Operator's License, Carrying a Concealed Weapon, and Failure to Yield.  He was found guilty and ordered to pay a fine and court costs. 

4.  On 16 June 1988, nonjudicial punishment was imposed against the applicant for distributing cocaine.  His punishment consisted of a reduction to E-1, restriction, a forfeiture of pay (suspended), restriction, and extra duty.  On 
27 June 1988, the suspended portion of the sentence was vacated.

5.  On 8 July 1988, nonjudicial punishment was imposed against the applicant for breaking restriction.  His punishment consisted of a forfeiture of pay.

6.  On 21 July 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12, for misconduct (pattern of misconduct).  The unit commander cited that the applicant had been a continuous disciplinary problem to the unit, that he failed to change his behavior, that he had two nonjudicial punishments (distributing cocaine and breaking restriction), and that this type of conduct would not be tolerated.

7.  On 25 July 1988, the applicant consulted with counsel.  He acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued and he elected not to submit a statement in his own behalf.  
8.  On 29 July 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  Accordingly, the applicant was discharged with a general discharge on 
5 August 1988 under the provisions of Army Regulation 635-200, paragraph 
14-12b, for misconduct (pattern of misconduct).  He had served a total of 2 years, 8 months, and 20 days of creditable active service.     

10.  Item 25 (Separation Authority) on his DD Form 214 shows the entry "AR [Army Regulation] 635-200 PARA [Paragraph] 14-12b SEC [Section] III."  Item 
26 (Separation Code) on his DD Form 214 shows the entry "JKM."  Item 
28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "MISCONDUCT-PATTERN OF MISCONDUCT."

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.  However, the separation authority may direct a general discharge if such is merited by the member's overall record.

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 635-5-1 (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 “JKM" is “Misconduct-pattern of misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.    


DISCUSSION AND CONCLUSIONS:

1.  Good post service conduct alone is normally not a basis for upgrading a discharge.

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities.  

3.  The applicant's contentions that there was no pattern of misconduct during his enlistment and that his general discharge was based on one isolated incident were noted.  However, his record of service included one nonjudicial punishment for distributing cocaine and one nonjudicial punishment for breaking restirction.  In addition, his unit commander stated that he had been a continuous disciplinary problem to the unit.  As a result, his record of service 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 an honorable discharge.

4.   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.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  The narrative reason for separation used in the applicant’s case is correct and was applied in accordance with the applicable regulations.

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.




      _______ _   X_______   ___
               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)                                         AR20090002704





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ABCMR Record of Proceedings (cont)                                         AR20090002704



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