IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090014274 


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 general discharge under honorable conditions be upgraded to a fully honorable discharge and that his narrative reason for separation be changed to a hardship or medical discharge.  

2.  The applicant states, in effect, that he was going back and forth with the chaplain.  He had requested a discharge and he was being process for a hardship discharge; however, he went absent without leave (AWOL) due to all of his personal problems.  During one of the periods of AWOL, he stayed in the barracks and just did not report.  During the second period of AWOL he went home and stayed awhile and he returned on his own.  Although he was initially being processed for a hardship discharge, he did not realize his record was going to show that he committed a serious offense.  Additionally, he states that he tried to commit suicide, was hospitalized, and was under a doctor’s care for months.  He states that he regrets the many mistakes that he made, but it was hard for him to adapt to the military life.  He states that he is still experiencing some nerve issues today, but he is currently enrolled in school.  

3.  The applicant provides a medical document 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 23 June 1989 for a period of 
5 years.  

3.  Item 29 (Dates of Time Lost) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows dates of lost time from 28 December 1989 to 9 January 1990.  

4.  The applicant provided a medical document which shows he was treated in an emergency room on 22 January 1990.  It was reported that the applicant had swallowed 15 to 20 tablets in a suicide attempt.  This document indicated the applicant was unhappy with life in the Army.

5.  The applicant received a bar to reenlistment on 6 March 1990.  His DA Form 4126-R (Bar to Reenlistment Certificate) shows he received nonjudicial punishment (NJP) on 23 February 1990.  The Article 15 proceedings are not present in his personnel records.  The Bar to Reenlistment Certificate also shows his misconduct included three periods of being absent without leave (AWOL) and missing Army Physical Fitness Training formation.  

6.  On 13 August 1991, the applicant accepted NJP under Article 15, Uniform Code of Military Justice for being AWOL from 2 July to 17 July 1991.

7.  On 7 November 1991, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-commission of a serious offense.  He consulted with legal counsel, requested consideration of his case by a board of officers, and he did not submit statements in his own behalf.  

8.  On 7 November 1991, the applicant voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service of no less favorable than a general discharge under honorable conditions discharge.  He did not submit statements in his own behalf.  


9.  On 12 November 1991, the unit commander recommended that the applicant be separated from the service under the provisions of Army Regulation 635-200, chapter 14 by reason of commission of a serious offense with the issuance of a general discharge, under honorable conditions.

10.  On 14 November 1991, the separation authority waived rehabilitation and approved discharge under the provisions of Army Regulation 635-200, paragraph 14-12c with the issuance of a general discharge, under honorable conditions.  

11.  The applicant was discharged from the service on 5 December 1991 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  He completed 2 years, 4 months, and 15 days of active military service with 27 days of lost time.  

12.  Item 26 (Separation Code) of his DD Form 214 shows he was assigned a Separation Program Designator (SPD) code of "JKQ.”

13.  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the narrative reason “Misconduct-Commission of a Serious Offense.”

14.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

15.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes 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 the regulation.

16.  Chapter 6 of Army Regulation 635-200 governs separation because of dependency or hardship.  The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship.  

17.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

19.  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 SPD's 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 SPD is “Army Regulation 635-200, Chapter 
14-12c."  

20.  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 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 contentions were carefully considered.  After review of the evidence of this case, the applicant has not presented sufficient evidence which indicates the actions taken in this case were in error or unjust.  

2.  The applicant’s evidence of record shows the applicant received two nonjudicial punishments for being AWOL for a total of 27 days.  

3.  It appears the applicant's chain of command determined his overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

4.  Although the applicant states he was initially being discharged for a hardship discharge, there is no evidence of record which shows the applicant submitted a request for a hardship discharge or that he met the criteria for a hardship discharge.

5.  There is no evidence that the applicant’s mental status required processing through medical channels or that it was the basis for his misconduct.

6.  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.

7.  The applicant has not presented sufficient evidence which warrants changing his general under honorable conditions discharge to fully honorable or changing his reason for separation to a medical discharge.

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)                                         AR20090014274



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ABCMR Record of Proceedings (cont)                                         AR20090014274



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