IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100000728


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), Block 26 (Separation Code) and Block 28 (Narrative Reason for Separation).

2.  The applicant states his DD Form 214 contains:

* a Separation Program Designator (SPD) Code of "BNC"
* a narrative reason for separation of "Misconduct, Moral or Professional Dereliction"

3.  The applicant states he would like his DD Form 214 to show:

* an SPD Code of "MBK"
* a narrative reason for separation of "Completion of Active Service"

4.  The applicant states during out-processing he was given many papers to sign. This included two DD Forms 214 that did not contain entries in Blocks 26 and 28.  In June 2009, he requested another copy of his DD Form 214 and he was given one with Blocks 26 and 28 filled in.  He never saw, acknowledged, or approved of those entries and he believes he was deceived.  He received an honorable characterization of service and believes Blocks 26 and 28 should match that characterization.  He adds his Officer Evaluation Reports (OER's) do not reflect misconduct due to moral or professional dereliction.



5.  The applicant provides:

* a 3-page addendum to his DD Form 149 (Application for Correction of Military Record)
* copies 1, 2 and 6 of his DD Form 214
* copies of four DA Forms 67-8 Officer Evaluation Reports (OER's)
* a copy of a memorandum with the subject:  Letter of Resignation, dated 21 January 1992

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 was a U.S. Army Reserve (USAR) officer serving on active duty as a first lieutenant.  While stationed in Panama, he was involved in a traffic accident on 29 March 1991 while driving under the influence of alcohol – his blood alcohol content (BAC) level was 0.12 percent.  He seriously injured three Soldiers.  He received a General Officer Letter of Reprimand (GOLOR) on 7 June 1991.

3.  On 9 August 1991, the applicant's commander initiated elimination action against him under the provisions of paragraph 5-11, Army Regulation 635-100 (Officer Personnel Separations) because of acts of personal misconduct.  On 

1 October 1991, the applicant requested resignation in lieu of elimination proceedings under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges).  His request was approved and the approving authority directed that he be issued an honorable discharge.

4.  The applicant was honorably discharged on 25 February 1992 under the provisions of Army Regulation 635-120, chapter 4, with an SPD Code of "BNC" by reason of "Misconduct, Moral or Professional Dereliction."

5.  Army Regulation 635-100, paragraph 5-11, provides for the elimination of officers for moral or professional dereliction, or in interests of national security.  It authorizes elimination of an officer due to acts of personal misconduct, including, but not limited to, acts committed while in a drunken or drug intoxicated state.  The type of discharge issued could be under other than honorable conditions.

6.  Army Regulation 635-120, in effect at the time, established policies and procedures for officer resignations and separations.  Chapter 4 provided that an officer could submit a resignation for the good of the service when being recommended for elimination.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active service, or control of the Active Army.  It establishes policy for preparing and distributing the DD Form 214 and the regulation then in effect provided in pertinent part:

* the DD Form 214 is a summary of a Soldier's most recent period of continuous active service and provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge
* ensure that copy 1 given to the Soldier when present on the separation date or any copy given to an agency outside of the Department of Defense does not contain the following information (except the narrative reason for separation will be provided to the Department of Veterans Affairs, Department of Labor, and State Directors of Veterans Affairs):
* authority for separation
* narrative reason for separation
* SPD Code
* reentry eligibility (RE) code

8.  Army Regulation 635-5-1 (Separation Codes) prescribes the specific authorities, the reasons for separation, and the SPD codes to be used for these reasons.  Officers who resign in lieu of elimination proceedings under the provisions of Army Regulation 635-120, chapter 4, will receive an SPD code of "BNC" and a reason of "Misconduct, Moral or Professional Dereliction."  Later versions of this regulation changed the narrative reason to "Unacceptable Conduct."

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a drunk driver who caused a traffic accident and seriously injured three fellow Soldiers.  He received a GOLOR and his chain of command initiated elimination action against him.  He requested resignation for the good of the service in lieu of elimination.  He was properly discharged under the provisions of Army Regulation 635-120, chapter 4.  His DD Form 214 was properly completed to show an SPD Code of "BNC" and a narrative reason of "Misconduct, Moral or Professional Dereliction."  He did not complete his required service.

2.  The process for completing the applicant's DD Form 214 was accomplished in accordance with regulations then in effect; service members did not, and do not, have approval authority over what goes on a DD Form 214.  At the time of the applicant's discharge, entries were not made in Blocks 26 and 28 of copies of DD Forms 214 provided to the service member.  Under current standards, the service member receives a copy of the DD Form 214 with Blocks 26 and 28 completed.

3.  The applicant committed the offense of drunk driving and, under regulations then in effect, his narrative reason for separation was "Misconduct, Moral or Professional Dereliction."  This reason for separation was designed to fit a wide range of misconduct and in the applicant's case it makes his offense sound more ominous.  Today, the narrative reason for separation for this offense would simply be "Unacceptable Conduct."  This sounds better than "moral or professional dereliction"; therefore, it would be appropriate to change Block 28 of his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the entry in Block 28 of his DD Form 214 and adding "Unacceptable Conduct."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing Block 26 of his 
DD Form 214 to show MBK and Block 28 to show "Completion of Active Service."



      _______ _   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)                                         AR20100000728



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)