IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100008451 


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, his discharge under other than honorable conditions be upgraded to a general discharge.  He also requests his separation code be changed.  

2.  The applicant states:

* He was told his discharge would change to a general discharge after 6 months
* He would like his discharge upgraded for employment opportunities  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter, dated 7 January 2010, from the Contracting Officer Representative, Department of the Army, Provost Marshal Office, Fort Rucker, Alabama  

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 20 February 1990 and trained as an infantryman.  On 23 November 1992, he was honorably discharged for immediate reenlistment.  He reenlisted on 24 November 1992 for a period of 
3 years.  He extended his enlistment on 22 April 1994 for a period of 20 months.  He attained the rank of staff sergeant on 1 May 1996.

3.  On 25 November 1996, nonjudicial punishment was imposed against the applicant for making a false official statement; stealing Basic Allowance for Quarters, Variable Housing Allowance, and Cost of Living Allowance; dishonorably failing to pay a debt; and altering a public record.  His punishment consisted of a reduction to E-5 and a forfeiture of pay (suspended).

4.  On 3 December 1996, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, paragraph      14-12c, for serious misconduct.  

5.  On 4 December 1996, the applicant consulted with counsel, waived consideration of his case by an administrative separation board, and elected not to submit a statement on his own behalf.

6.  On 9 December 1996, a bar to reenlistment was imposed against the applicant.

7.  The separation authority approved the recommendation for separation and directed the issuance of a discharge under honorable conditions.  

8.  Accordingly, the applicant was discharged under other than honorable conditions on 20 December 1996 under the provisions of Army Regulation 
635-200, paragraph 14-12c, for misconduct.  He had served a total of 6 years, 10 months, and 1 day of creditable active service.

9.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C.”  Item 
26 (Separation Code) on his DD Form 214 shows the entry "JKQ."  Item 
28 (Narrative Reason for Separation) on his DD Form 214 shows the entry "MISCONDUCT.”
10.  On 30 September 1999, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14, in effect at the time, established policy and prescribes procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, and abuse of illegal drugs.  The issuance of a discharge under other than honorable conditions was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the member's overall record.

12.  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.

13.  Army Regulation 635-5-1 (Separation Program Designator Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation states the reason for discharge based on separation code “JKQ” is “Misconduct” and the regulatory authority is Army Regulation 635-200, paragraph 14-12c.

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
  
DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  A discharge is not upgraded for the purpose of obtaining educational benefits.

3.  The applicant’s record of service during his last enlistment included one nonjudicial punishment for serious offenses and a bar to reenlistment.  He was a staff sergeant.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

6.  The applicant's separation code was administratively correct and in conformance with applicable regulations at the time of his separation.

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)                                         AR20100008451



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ABCMR Record of Proceedings (cont)                                         AR20100008451



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