IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090019442 


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 items 25 (separation authority), item 26 (separation code), item 27 (reenlistment (RE) code) and item 28 (narrative reason for separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be removed from his (Certificate of Release or Discharge from Active Duty) and his discharge be upgraded.

2.  The applicant states he was originally arrested for aggravated assault with great bodily injury but to be honest he states he made some bad choices in the past that he deeply regrets.  He also states he has no excuses for his actions therefore; he places himself at the mercy of the board and only wants to minister to combat Soldiers.

3.  The applicant provides a self authored statement, a character reference, and his Lab results in support of this 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 19 October 1982.

3. The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 that contains the authority and reason for the applicant’s active duty discharge on 21 July 1989 which shows the applicant was discharged under other than honorable conditions.  His DD Form 214 also contains the following entries:

* Item 12c (Net Active Service this Period) "6 years, 9 months, and 3 days"
* Item 25 (Separation Authority) "Army Regulation 635-200, paragraph 14-12c."
* Item 26 (Separation Code) "JKQ."
* Item 27 "RE-3"
* Item 28 "misconduct – commission of a serious offense."

4.  On 28 April 1998 the Army Discharge Review Board (ADRB) disapproved the applicant's request for an upgrade of his discharge.  The facts and circumstances surrounding his discharge were not available to the ADRB.

5.  The statement provided by the applicant on his behalf is from a friend who attests to the applicant’s compassion and leadership.

6.  The applicant submitted a copy of his Lab result from the Arizona Department of Corrections, dated 27 July 2009.

7.  The applicant submitted copies of his college transcripts from the Victor Valley College.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 of this regulation 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, conviction by civil authorities, desertion, or absences without leave.  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 considered appropriate.

9.  By regulation, RE codes of RE 3 is the proper codes assigned to members who were separated under the provisions of Army Regulation 635-200, by reason of misconduct  with an SPD code of JKQ.  The applicant's codes are still valid.

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation in effect at the time showed the SPD code of “JKQ” as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for “misconduct- commission of a serious offence” and that the authority for separation under this separation program designator was “Army Regulation 635-200, paragraph 14-12c."

11.  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.

12.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.

3.  The applicant's contention and character reference stating that he wants to minister to Soldiers, has attended college and has since become a productive citizen are noted, however neither suffice as a basis to warrant upgrading the character of his service.

4.  Therefore, there is no justification or reason to change the applicant's narrative reason for separation as his separation was based on misconduct – commission of a serious offense.  He has also failed to show the separation authority, the separation code, and RE codes were assigned to him were in error or unjust.

5.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

6.  In view of the above, there is no basis for granting the applicant 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)                                         AR20090019442



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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