IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015228 


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 his narrative reason for separation be changed to "discharged."

2.  The applicant states:

* he believes the record is unjust because he was not removed from the Army for misconduct
* he left the Army after he was unjustly given an Article 15 when he had eyewitnesses to the contrary 
* if he had stayed in the Army, he was due to receive the Army Good Conduct Medal
* while in the Army he served honorably
* after his discharge, he retired as a police officer
* he points out that another Soldier who was also given an Article 15 is still in the service and is due to be discharged as a sergeant first class
* if he had remained in the Army, his DD Form 214 (Certificate of Release or Discharge from Active Duty) would have read "discharge - separation from duty"

3.  The applicant provides:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* service personnel records


* sworn statements
* 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 14 August 1990 and trained as a military policeman.  He attained the rank of specialist four on 1 March 1992.

3.  On 13 May 1993, nonjudicial punishment (NJP) was imposed against the applicant for larceny, solicitation to commit larceny, and endeavoring to impede an investigation and influence the testimony of a sergeant.

4.  On 20 July 1993, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph14-12c, for misconduct (commission of a serious offense).  He recommended the applicant receive an honorable discharge.

5.  On 20 July 1993, the applicant consulted with counsel, he was advised of his rights, and he elected not to submit a statement on his own behalf.

6.  On 22 August 1993, the separation authority approved the recommendation for separation and directed the issuance of a general discharge.

7.  Accordingly, the applicant was separated with a general discharge on 27 August 1993 under the provisions of Army Regulation 635-200, 
paragraph 14-12c, for misconduct.  He had a total of 3 years and 14 days of creditable active service.

8.  Item 25 (Separation Authority) of the applicant's DD Form 214 shows the entry "Army Regulation 635-200, paragraph 14-12c."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKQ."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "misconduct."

9.  In support of his claim, the applicant provided numerous sworn statements which were considered as part of his Article 15 proceedings.

10.  On 1 February 2002, the Army Discharge Review Board upgraded the applicant's discharge to an honorable discharge.

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 prescribed 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 635-5-1 (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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends the record is unjust because he was not removed from the Army for misconduct, the evidence of record shows discharge proceedings were initiated against him for misconduct (commission of a serious offense).

2.  The applicant's contention pertaining to the imposition of the Article 15 relates to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a trial by court-martial.  However, the applicant accepted NJP for this offense, rather than demand trial by court-martial.

3.  The applicant's narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.  As a result, there is no basis for granting the applicant's request.

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 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)                                         AR20100015228



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ABCMR Record of Proceedings (cont)                                         AR20100015228



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