IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090007146 


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 narrative reason for separation be changed from misconduct to something more favorable.  

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.  He adds that he recently tried to reenlist [sic] (reenter military service) and was told he could not do so due to his misconduct.  He concludes that this issue is very important to him because he feels he had not been given a fair chance to come back and serve his country. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 3 years on 6 February 1997.  He completed basic combat and advanced individual training and was awarded military occupational specialty 92G (Food Service Specialist).  His records also show he executed a 2-year reenlistment on 17 February 1999.  The highest rank/grade he attained during his military service was specialist/E-4.

2.  The applicant's records also show he was awarded the Army Service Ribbon.


3.  On 12 December 1997, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for three counts of failure to report at the prescribed time to his appointed place of duty on various occasions.  His punishment consisted of 10 days of extra duty and 10 days of restriction.

4.  On 4 August 1999, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) during the period on or about 30 July 1999 through on or about 2 August 1999 and absenting himself from his appointed place of duty on or about 2 August 1999.  His punishment consisted of 10 days of extra duty and 10 days of restriction (suspended for 6 months).

5.  The applicant's records contain an extensive history of counseling statements by various members of his chain of command for various infractions, to include multiple instances of failure to report, loss of his military Identification card, missing formation, missing physical fitness training, AWOL, and other infractions.

6.  On 7 March 2000, the applicant participated in a command urinalysis and his urine sample tested positive for marijuana.

7.  On 11 April 2000, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  His punishment consisted of a reduction to private, a forfeiture of $502.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty.

8.  On 2 June 2000, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 (Personnel Separations) for misconduct.  The specific basis of the recommendation was the applicant's wrongful use of marijuana, multiple instances of failure to report, and his AWOL.  The immediate commander recommended an under other than honorable conditions discharge.

9.  On 2 June 2000, the applicant 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 elected not to submit a statement on his own behalf.
10.  On 2 June 2000, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of Army Regulation 635-200 for misconduct.  The immediate commander remarked that the applicant was provided with an ample opportunity to correct his misconduct and that all rehabilitative efforts failed. 

11.  On 6 June 2000, the applicant’s intermediate and senior commanders reviewed the separation recommendation and each recommended approval with a general discharge under honorable conditions.

12.  On 23 June 2000, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct and directed he be furnished a general, under honorable conditions discharge.  The applicant was accordingly discharged on 10 August 2000.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged with a character of service of under honorable conditions (general).  This form further confirms that he completed 3 years, 6 months, and 5 days of creditable active military service during the period under review.  Item 25 (Narrative Reason for Separation) of this form shows the entry "Misconduct," item 26 shows the entry "JKA," and item 27 (Reentry Code) shows the entry "3."

13.  On 22 January 2008, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of his discharge to fully honorable. However, the ADRB determined that the reason for discharge was fully supported by the record and therefore remains proper and equitable.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes 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 will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is 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.



15.  Army Regulation 635-5-1 (Separation Program Designator Codes) states that the separation program designator (SPD) codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "JKA" SPD code is the correct code for Soldiers separating under chapter 14-12(b) of Army Regulation 635-200 by reason of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the narrative reason for his separation should be changed.  

2.  Contrary to the applicant's contention that his discharge was based on an isolated incident, the evidence of record shows that the applicant had a history of misconduct in the form of multiple instances of failure to report, wrongful use of marijuana, two instances of NJP, and one instance of AWOL.  He was provided with an ample opportunity to correct his misconduct but all rehabilitative efforts failed. 

3.  The evidence of record confirms that the applicant’s narrative reason for separation was assigned based on the fact that he was discharged under the provisions of paragraph 14-12(b) of Army Regulation 635-200 for 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" which is correctly shown on his DD Form 214.

4.  The ADRB determined that the applicant's character of service was inequitable and upgraded it to honorable.  However, the ADRB also considered the applicant's reason for separation when it directed the upgrade action and determined that the reason for separation was proper and equitable.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not 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.



      _______ _   _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)                                         AR20090007146



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ABCMR Record of Proceedings (cont)                                         AR20090007146



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