IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090013910 


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 an upgrade of his general discharge and correction of the narrative reason for separation from misconduct to something more favorable.  

2.  The applicant states that he had a Good Conduct Medal and did not understand the type of discharge he was receiving at the time.

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

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's records show he enlisted in the Regular Army for a period of 4 years on 5 March 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade he attained during his military service was specialist/E-4.

3.  The applicant's records also show he served in Germany from on or about 16 November 1986 to on or about 16 February 1989 and that he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, the Good Conduct Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Marksman Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records contain an extensive history of counseling statements by various members of his chain of command for various infractions, to include not having his room prepared for inspection, multiple instances of failure to report, involvement in discreditable actions with civil authorities, and revocation of his drinking privileges.

5.  On 6 February 1987, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully receiving 100 German Marks, of a value of $54.00, in stolen property on or about 14 January 1987.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $178.00 pay (suspended for 60 days), 14 days of restriction, and 14 days of extra duty.

6.  On 24 August 1988, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful towards a superior noncommissioned officer on or about 19 May and 12 June 1988; violating a general regulation by wrongfully having a .50 caliber round in his wall locker on or about 26 January 1988; wrongfully striking another Soldier on the left side of the face with his hands and striking him in the head with his feet on or about 29 May 1988; unlawfully striking another Soldier in the face with his hands on or about 29 May 1988; and unlawfully pushing a third Soldier in the body with his hands and then striking him on the forehead with his hands on or about 12 June 1988.  His punishment consisted of a reduction to private (PVT)/E-1 (the reduction in excess of PFC/E-3 was suspended until 20 February 1989); a forfeiture of $310.00 pay for 2 months (the forfeiture in excess of $100.00 pay for 2 months was suspended until 20 February 1989), and 45 days of restriction and extra duty.



7.  On 6 December 1988, the applicant was involved in the offense of breaching the peace, damaging private property, and assault after a fight in a club.  He was barred from the club by the owner.  He was also arrested by German authorities who ultimately released him to military authorities and waived the right to exercise jurisdiction in his case.  

8.  On 12 December 1988, the unexecuted portion of the applicant's 12 August 1988 punishment was vacated and the applicant's punishment was ordered executed. 

9.  On 24 January 1989, the applicant again accepted NJP under the provisions of Article 15 of the UCMJ for willfully and wrongfully damaging by kicking and punching a car window of a value greater than $100.00 on or about 6 December 1988; and being drunk and disorderly and conducting himself in a manner to bring discredit upon the armed forces on or about 6 December 1988.  His punishment consisted of a forfeiture of $349.00 pay for 2 months and 14 days of extra duty and restriction (the forfeiture in excess of $150.00 for 2 months and the 14 days of extra duty and restriction were suspended until 24 June 1989).

10.  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 pattern of misconduct.  The immediate commander recommended the issuance of a general discharge.

11.  On 30 January 1989, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action 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 acknowledged he understood 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 elected not to submit a statement on his own behalf.

12.  On 30 January 1989, 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 the opportunity to correct his misconduct and that all rehabilitative efforts failed. 
13.  On 30 January 1989, the applicant’s intermediate commander reviewed the separation recommendation and recommended approval with a general discharge under honorable conditions.

14.  On 6 February 1989, 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 that he be furnished a general discharge, under honorable conditions.  The applicant was accordingly discharged on 
17 February 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 3 years, 11 months, and 
13 days of creditable active military service during the period under review.  Item 25 (Narrative Reason for Separation) of this form shows the entry "Misconduct-Pattern of Misconduct" item 26 shows the entry "JKM," and item 27 (Reentry Code) show the entries "3, and 3C."

15.  In 1990, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

16.  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.

17.  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.  

18.  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 "JKM" 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 his general discharge should be upgraded and the narrative reason for separation changed.  

2.  With respect to his character of service, the applicant's record of service shows that he accepted NJP under the provisions of Article 15 of the UCMJ on multiple occasions for various infractions as well as an extensive history of counseling by several members of his chain of command for various other infractions.  Accordingly, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  The applicant’s repeated misconduct and failure to respond to counseling by members of his chain of command and diminished the quality of his service.

4.  The evidence of record confirms 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.  Therefore, his narrative reason for separation is correctly shown on his DD Form 214.

5.  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 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.




      _______ _   __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)                                         AR20090013910



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ABCMR Record of Proceedings (cont)                                         AR20090013910



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