IN THE CASE OF:	

		BOARD DATE:	 29 April 2010 

		DOCKET NUMBER:  AR20090016526 


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, in effect, reconsideration of his earlier petition for correction to item 26 (Separation Code) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he is providing new information he believes will support a change to his separation program designator (SPD) code JKQ based on misconduct.  He claims this code directly conflicts with his retention control point (RCP) and the upgrade of his characterization of service by the Army Discharge Review Board (ADRB).  He also states that even though the ADRB found the reason for his discharge and by default his SPD code appropriate, he believes his misconduct discharge was the result of gross abuse on the part of his chain of command.

3.  The applicant further states that once he met the RCP the command began to build a packet of misconduct against him to prevent him from being eligible for separation pay.  He claims his permanent change of station to Fort Benning, Georgia, was deleted on 2 January 2002 because he could not complete the service-remaining requirement for the assignment because of his RCP.  As a result, administrative actions presented after the date of the orders should have been negated.  He further states the inappropriate collection of misconduct, confused legal support, immediate processing of the administrative board, and inappropriate time to out-process were all signs of his being targeted to prevent him from receiving separation pay.

4.  The applicant provides the following documents in support of his application:
* 
self-authored statement
* Headquarters, U.S. Infantry Center, Fort Benning, Orders 227-2207, dated 15 August 2003
* Military Personnel Division, Fort George G. Meade, memorandum, dated 2 January 2002
* U.S. Army Garrison, Fort George G. Meade, Orders 028-29, dated 28 January 2002, and Orders 074-31, dated 15 March 2002
* Honorable Discharge Certificate
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090000258 on 2 April 2009.

2.  During the original consideration of the case, the Board concluded the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further found the underlying reason for the applicant's discharge was misconduct. 
As a result, this was the only valid narrative reason for his discharge and further resulted in appropriately being assigned the SPD code JKQ.

3.  The applicant submits the aforementioned documents that were not previously considered by the Board as new evidence.

4.  The applicant's records show he enlisted in the Regular Army and entered active duty on 25 November 1992.  He was trained in, awarded, and served in military occupational specialty 75B (Personnel Administration Specialist).  The highest rank/grade he attained while serving on active duty was sergeant/E-5.

5.  The record further shows the applicant was reduced to specialist/E-4 for cause on 28 August 2001, and subsequently to private/E-2, on 17 March 2003.

6.  The record also shows that during his tenure on active duty, he earned the following awards:

* Army Commendation Medal (2nd Award),
* Army Achievement Medal (5th Award)
* Armed Forces Service Medal
* Army Good Conduct Medal (2nd Award)
* National Defense Service Medal
* Southwest Asia Service Medal
* Noncommissioned Officer Professional Development Ribbon with Numeral 2
* Army Service Ribbon
* Overseas Service Ribbon
* North Atlantic Treaty Organization Medal
* Driver and Mechanic Badge with Driver-A Bar
* Zaire Military Parachutist Badge
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Global War on Terrorism Service Medal
* Army Service Ribbon

7.  The applicant's disciplinary history shows he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:

	a.  14 August 2001, for the wrongful use of his government credit card for unofficial purposes between 6 and 13 May 2001;

	b.  1 July 2002, for seven instances of failure to repair, disobeying a noncommissioned officer, and two instances of writing bad checks;

	c.  6 November 2002, for four instances of failure to repair; and

	d.  17 March 2003, for failure to repair and disobeying a noncommissioned officer.

8.  On 4 April 2003, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), by reason of patterns of misconduct.  The unit commander cited the applicant's misconduct of two instances of disobeying a noncommissioned officer, two instances of writing bad checks, and 13 instances of failure to repair.

9.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers contingent upon receiving an honorable discharge and further elected not to submit a statement in his own behalf.

10.  On 9 April 2003 after review of the chapter action for the applicant, the attorney-advisor determined the applicant's infractions detailed in his separation action clearly constituted a pattern of misconduct and found it legally sufficient to support separation under the provisions of paragraph 14-12b, Army Regulation 635-200.  The attorney-advisor further indicated procedural requirements had been complied with and the applicant had been adequately counseled and was given a reasonable opportunity to improve, was informed of his rights, and was given the opportunity to consult with counsel.

11.  On 30 May 2003, the applicant's conditional waiver was disapproved and his separation action was referred to an administration separation board (ASB).

12.  On 9 July 2003, an ASB convened to determine if the applicant should be separated for misconduct prior to the expiration of his term of service.  The board found the allegation of multiple violations of Article 86 of the UCMJ, disobeying a superior noncommissioned officer, and allegations of writing bad checks were supported by a preponderance of the evidence.  The board recommended the applicant be discharged with a general under honorable conditions discharge.

13.  On 7 August 2003, the separation authority approved the applicant's separation action and directed he be separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of a pattern of misconduct.  On 25 August 2003, the applicant was discharged accordingly.

14.  The DD Form 214 issued to the applicant upon his discharge shows he was separated under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of misconduct with a general discharge.  It also shows he had completed a total of 10 years, 9 months, and 1 day of creditable active military service and held the rank of private/E-2.

15.  On 7 August 2006, the ADRB, after careful consideration of the applicant's military record and all other available evidence, determined his characterization of service was too harsh based on his overall length and quality of his service and voted to upgrade the characterization of service to fully honorable.  However, the ADRB determined that the narrative reason for discharge was both proper and equitable and voted not to change it.

16.  On 10 August 2006, a new DD Form 214 was issued reflecting the applicant's character of service as "honorable" as a result of the ADRB action.

17.  The applicant provides a memorandum from the Military Personnel Division, Fort George G. Meade, dated 2 January 2002.  This document shows he was deleted from assignment because he could not extend or reenlist to satisfy the service-remaining requirement for the assignment based on his RCP.

18.  Department of Army Circular 635-92-1 (Separation Pay) prescribes the eligibility criteria and provides samples of voluntary separation pay computations. 
Chapter 2 states that Soldiers on active duty (AD) or Full-Time National Guard (FTNG) duty are eligible for separation pay based on the following criteria:

* member has completed at least 6 years, but less than 20 years of active service 
* separation is characterized as honorable (full separation pay) or under honorable conditions (half separation pay)
* member has completed his/her initial term of enlistment and is being involuntarily separated, either at or prior to expiration of term of service, as a result of denial of reenlistment or denial of continuation on AD or FTNG duty
* member has signed a DA Form 7154-R (Agreement to Join Ready Reserve) to serve in the Ready Reserve for a period of not less than 3 years

19.  Paragraph 2-4 of the same circular states enlisted Soldiers separated for unsatisfactory performance or misconduct are ineligible for separation pay.

20.  Army Regulation 635-5-1 (SPD Codes) states that 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 SPD code JKQ is the correct code for Soldiers separating under paragraph 14-12c, Army Regulation 635-200, for misconduct.

21.  Army Regulation 635-200 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.  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 or honorable discharge if such is merited by the Soldier's overall record of service

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that based on the ADRB's upgrade of his characterization of service to honorable and the abuse of his chain of command his SPD code should be changed to reflect his RCP and he should receive separation pay, has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  This included consideration of his case by an ASB that found the preponderance of the evidence supported a pattern of misconduct supporting his discharge prior to his expiration of term of service or reaching his RCP.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  Although the ADRB upgraded his character of service to fully honorable based on equity and his overall record of service, it also determined the authority and reason for his discharge were proper and equitable and voted not to change them.  Further, the applicant has failed to provide any independent evidence to support his assertion that the chain of command built a misconduct case simply to deny him separation pay.

4.  The applicant's disciplinary history clearly supported his misconduct discharge.  While his overall record of service supported the original issuance of a general discharge, which the ADRB upgraded to an honorable discharge, there is no evidence of record or independent evidence provided by the applicant that would indicate he did not commit the misconduct that led to his discharge.  As a result, the SPD code JKQ he received was and remains valid and there is an insufficient evidentiary basis to support granting the requested relief.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement or that would support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090000258 on 2 April 2009.



      ___________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)                                         AR20090016526



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ABCMR Record of Proceedings (cont)                                         AR20090016526



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