IN THE CASE OF:	  

		BOARD DATE:	       14 October 2009 

		DOCKET NUMBER:  AR20090009010 


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 item 26 (Separation Code) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be upgraded from "JKQ" to a more favorable code. 

2.  The applicant states that her discharge and reentry code were upgraded and/or corrected.  She now wants her separation code corrected so she may receive separation pay.  

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

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Army National Guard, Regular Army, and the U.S. Army Reserve (USAR), the applicant's records show she enlisted in the USAR on 25 August 2004.  She held military occupational specialty 88M (Motor Transport Operator) and was assigned to the 942nd Transportation Company, Fort Bragg, NC.

2.  On 3 April 2005, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Kuwait from 16 April 2005 to 16 December 2005.  She was honorably released from active duty to the control of her USAR unit on 20 January 2006.

3.  On 8 December 2006, the applicant was again ordered to active duty, in support of Operation Enduring Freedom.

4.  On 26 February 2007, the applicant departed her unit in an absent without leave (AWOL) status.  She returned on 15 March 2007.

5.  On 2 April 2007, the applicant again departed her unit in an AWOL status and was subsequently dropped from the Army rolls on an unknown date.  She was apprehended by military authorities at El Paso International Airport and returned to military control on 17 May 2007.  

6.  On 22 May 2007, the applicant was placed in pre-trial confinement and remained confined until 12 July 2007. 

7.  On 12 July 2007, the applicant pled guilty at a summary court-martial to two specifications of being AWOL during the periods on or about 26 February 2007 through on or about 15 March 2007 and on or about 2 April 2007 through on or about 17 May 2007.  The court sentenced her to 30 days of confinement and a reduction to private/E-1.

8.  On 18 July 2007, the applicant’s immediate commander notified the applicant of her (the immediate commander’s) intent to initiate separation action against her (the applicant) in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations) for misconduct, citing her two instances of AWOL.

9.  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 her and the effect of any action taken by her in waiving her rights, and the type of discharge and its effect on further enlistment or reenlistment.  The applicant understood that she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her and that she could be ineligible for many or all benefits as a veteran under Federal and State laws.  The applicant further elected to submit a statement on her own behalf.

10.  In her statement, the applicant acknowledged her mistakes and apologized to her chain of command and the Army for her misconduct.  She further stated that she encountered two deaths in her family and suffered from depression. 

11.  On 30 July 2007, the applicant’s immediate commander initiated separation action against her in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct.  The immediate commander recommended an under other than honorable conditions discharge.

12.  On 31 July 2007, the applicant’s senior commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service.

13.  On 27 August 2007, the separation authority approved the applicant’s discharge under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct with a characterization of service as under other than honorable conditions.  On 13 September 2007, the applicant was accordingly discharged.  The DD Form 214 she was issued confirms she was discharged with an under other than honorable conditions character of service.  This form further confirms that she completed 5 months and 13 days of creditable active military service during the period under review.  Item 26 of this form shows the entry "JKQ" and item 27 (Reentry Code) shows the entry "4."

14.  On 1 August 2008, the Army Discharge Review Board (ADRB) granted the applicant relief in the form of an upgrade of her discharge to an under honorable conditions (general) discharge.  The ADRB further determined that the narrative reason for separation remains appropriate.

15.  On 10 February 2009, the ABCMR granted the applicant relief in the form of a correction of her RE code from RE-4 to RE-3.  

16.  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.

17.  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 "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12(c) of Army Regulation 635-200 by reason of misconduct.

18.  The SPD/RE Code Cross Reference Table, dated 31 March 2005, provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The SPD code of "JKQ" is the appropriate SPD for Soldier being discharged under the provisions of paragraph 14-12(c) of Army Regulation 635-200 for misconduct and the corresponding RE code is "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her narrative reason for her separation should be corrected.  

2.  The evidence of record confirms that the applicant’s SPD code was assigned based on the fact that she was discharged under the provisions of paragraph    14-12(c) 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 her discharge was her misconduct.  The only valid narrative reason for separation permitted under that paragraph is "Misconduct" and the appropriate SPD code associated with this discharge is "JKQ."

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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, she 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)                                         AR20090009010



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ABCMR Record of Proceedings (cont)                                         AR20090009010



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