IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100011311 


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 narrative reason for separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was separated through no fault of his own.

2.  The applicant states when he was separated from the Army he received a general discharge under honorable conditions.  However, when he received a copy of his DD Form 214 he noted it stated the reason for his discharge was “misconduct.”  The applicant states the reason he wanted out of the military was because he could not adapt to military life.  He notes he spoke to his chaplain, unit first sergeant, and the post commander and they all agreed he could be separated through no fault of his own and they would let him out with the general discharge for failing to adapt.  He further states his DD Form 214 does not explain what the misconduct is.

3.  The applicant provides a copy of his DD Form 214.

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 2 July 1991.  He successfully completed training and in October 1991 was assigned to a field artillery unit at Fort Knox, KY as a cannon crewmember.

3.  On 20 December 1993 the applicant was notified by his unit commander that action had been initiated to administratively separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for patterns of misconduct.  The commander noted the basis for his recommendation included the applicant’s continuing pattern of disrespect, not following instructions, poor performance, poor appearance, and misconduct, including an Article 15 under the Uniform Code of Military Justice (UCMJ) for assault and one for housebreaking, larceny, and damage to government property.  The commander also noted the applicant had been counseled on multiple occasions.

4.  The applicant acknowledged receipt of the proposed separation, consulted with legal counsel and indicated he would waive consideration of his case by a board of officers contingent upon receiving a characterization of service of no less than under honorable conditions (commonly referred to as a general discharge).  The applicant made no statement in his own behalf.

5.  A mental status evaluation conducted in conjunction with the applicant’s separation processing notes his behavior was normal, he was fully alert and oriented, and that while his mood was anxious his thought process was clear and normal and that he had the capacity to understand and participate in the separation proceedings.

6.  The appropriate separation authority approved the unit commander's recommendation that the applicant be administratively discharged and directed that the applicant be issued a General Discharge Certificate.

7.  On 25 January 1994, the applicant was accordingly discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, as a result of a pattern of misconduct.  He was issued a separation code of JKA.  He had completed 2 years, 6 months, and 24 days of active Federal service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 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.  Paragraph 14-12b specifically provides for separation as a result of a pattern of misconduct.  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; however, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that for item 28, enter the reason for separation (shown in Army Regulation
635-5-1 (Separation Program Designator (SPD) Codes)) based on the regulatory or statutory authority.

11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 14-12b, by reason of pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention he was told he would be allowed to get out the Army through no fault of his own because he was unable to adapt is not supported by any evidence of record or provided by the applicant.  Rather, the available evidence shows the applicant was actively involved in his separation process; he acknowledged the basis for the separation was his pattern of misconduct, and he waived his right to a board of officers contingent upon receiving no less than a general discharge.


2.  The applicant's DD Form 214 accurately shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with an SPD of JKA.  The corresponding narrative reason for separation is "pattern of misconduct."

3.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100011311



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ABCMR Record of Proceedings (cont)                                         AR20100011311



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