IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100016538 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge and change of the narrative reason for separation from "misconduct - pattern of misconduct" to "released from active duty" on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 August 1989.

2.  He states, in effect, the Army separated him for a pattern of misconduct, which is prejudicial and implies a certain level of malfeasance.  He states, "As proof of this injustice, I offer my post-service as evidence of misleading nomenclature of my character.  I have no arrest since my discharge, I received a BSW [Bachelor of Social Work] in social work, and have enjoyed a career working with adults with developmental disabilities."  He concludes if he had a pattern of wrongdoing, surely it would have carried over into his civilian life.  He desires to reference his military with pride, not to hide it under a cloud of shame.

3.  He provides no additional documentation.

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 had prior service in the U.S. Army Reserve and the Army National Guard.  On 13 July 1986, he enlisted in the Regular Army and he was awarded military occupational specialty 95B (Military Police).  

3.  On 15 June 1987, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to stay awake while on duty as a Military Police Patrolman.

4.  His military record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:

* 19 July 1987 for writing a bad check and not having sufficient funds in his checking account
* 22 July 1987 for reporting to duty in a sub-standard uniform and failing his room inspection

5.  On 3 September 1987, his commander received a letter of indebtedness that indicated the applicant had an account that was three installments past due and requested the applicant arrange to fulfill his payment obligation.

6.  He accepted general counseling statements on the following dates:

* 28 November 1987 for failing his company commander's room inspection
* 29 December 1987 for failing his platoon leader and platoon sergeant's room inspection

7.  On 14 January 1988, he accepted NJP under Article 15, UCMJ for failing to clear his .45 caliber pistol before entering the building.

8.  He accepted a general counseling statement on 11 February 1988 for poor job performance.

9.  On 19 April 1989, he accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) for the period 28 February 1989 through 3 March 1989.

10.  He accepted a general counseling statement on 24 March 1989 for writing a bad check and not having sufficient funds in his checking account.

11.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 12 May 1989, shows he was barred from reenlistment for receiving two Article 15s, for receiving one letter of indebtedness, for having two instances of bad check writing and insufficient funds, and for being counseled on numerous occasions for failing several room inspections and poor job performance.  He elected not to submit a statement in his own behalf.

12.  He accepted a general counseling statement on 22 May 1989 for his inability to pay his just debts, to account for sensitive military equipment, and for failing to go at the time prescribed to his appointed place of duty.

13.  On 11 August 1989, the applicant's commander initiated elimination action on him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, paragraph 14-12b, for misconduct.  The reasons cited by the commander were the applicant receiving three Article 15s, for failing to clear his weapon before entering a building, for failing to stay awake as a Military Police Patrolman, and for AWOL.

14.  The applicant was advised by consulting counsel of the basis for the contemplated separation action.  He was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 
635-200, chapter 14.  He requested counsel, waived his right to an administrative board, and elected not to submit a statement in his own behalf.

15.  On 3 May 1989, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 14-12b, by reason of "Misconduct - pattern of misconduct" with issuance of a general discharge.  On 24 August 1989 he was discharged accordingly in pay grade E-1.  His DD Form 214 shows he was assigned a separation code of "JKM."  He completed 2 years, 9 months, and 9 days of net active service this period for a total of 4 years,
2 months, and 4 days of creditable active service.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 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, and 
convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  Army Regulation 635-5-1 (Separation Program Designator (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 "JKM" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct - pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant received three Article 15's, he had one instance of AWOL totaling 3 days of time lost, he was barred from reenlistment, he wrote two bad checks, he failed room inspections on several occasions, he failed to clear his weapon before entering a building, he failed to pay just debts, he failed to stay awake while on duty, and his job performance was poor.  Based on these facts, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable discharge.

2.  He contends his narrative reason for separation is prejudicial and implies a certain level of malfeasance.  He offers his post-service conduct and achievements as evidence as to show his reason for separation is misleading.  However, good post-service conduct and achievements alone are not sufficient to mitigate his indiscipline in the Army in accordance with Army Regulation
635-200, chapter 14 due to misconduct and are not a basis for changing a properly-issued narrative reason for separation.

3.  His administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  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)                                         AR20100016538



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ABCMR Record of Proceedings (cont)                                         AR20100016538



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