IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100020189 


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 the separation authority and his narrative reason for separation.

2.  The applicant states:

   a.  Army Regulation 635-200, paragraph 14-12b provides the authority to
separate Soldiers for “patterns of misconduct”;

   b.  the dictionary defines “pattern” as a consistent characteristic form or style;

   c.  his record contains one incident for which he was demoted and subsequently discharged two months thereafter;

   d.  one indiscretion does not transform into a pattern of misconduct; and 
   
   e.  as a result the separation authority and the narrative reason for discharge should be modified to "administrative justifications."

3.  The applicant provides no additional documents.

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’s record shows he enlisted in the Regular Army on 12 March 1993.  He was trained in and awarded military occupational specialty (MOS) 95B (Military Police).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in
Item 18 (Appointments and Reductions), that he attained the rank/grade of private first class (PFC)/E-3 on 1 November 1993, and this is the highest rank he attained while serving on active duty.  It also shows he was reduced to the rank of private (PV2)/E-2 on 14 December 1994.

4.  The applicant’s record reveals a disciplinary history that includes formal counseling on seven separate occasions for a myriad of disciplinary infractions between 11 November 1994 and 15 February 1995 that include the following:

* disorderly conduct
* being relieved from duty
* assault
* violating the use of his chain of command
* disobeying lawful orders
* being disrespectful
* missing formation
* dereliction
* alleged spousal abuse
* command referred to the Family Advocacy Center

5.  On 14 December 1994, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for striking a Soldier in the face with his closed fist.

6.  On 20 December 1994, a Social Worker, Family Advocacy Program, indicated a review of the alleged spousal abuse referral involving the applicant and his wife substantiated both the applicant and his spouse were victims of spouse abuse.


7.  On 19 January 1995, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, that he was fully alert and oriented, that he had an unremarkable mood, that his thinking process was clear, and that his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and had the mental capacity to understand and participate in separation proceedings.

8.  On 10 February 1995, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  The unit commander cited the applicant's failure to respond to numerous counseling, violating orders, being disrespectful, and assault as the basis for his proposed action.  He further stated the applicant had received an Article 15 for assault consummated by battery.

9.  On 16 February 1995, the applicant consulted with legal counsel.  After being advised of the basis for the contemplated separation action and its effects and of the rights available to him, he completed an election of rights.  The applicant further acknowledged he understood he could encounter substantial prejudice in civilian life if he received a general discharge (GD).  He also elected representation by counsel and submitted a statement in his own behalf.  

10.  The applicant indicated in the statement that he provided:

   a.  although he was involved in an on-post incident for assault, he was unjustly given an Article 15 which led to reduction to PV2 and 14 days of restriction when several other Soldiers involved in the same incident received  less severe punishment;

   b.  his record does not reflect the many missions he participated in or his accomplishments, it only documents his domestic and assault issues; and

   c.  he had learned many things as a result f his military service and he primarily agreed to the separation action because he wanted to avoid the additional punishment he was facing.

11.  The separation authority approved the applicant’s separation under the provisions of paragraph 14-12c, Army Regulation 635-200 Army Regulation 
635-200, due to commission of a serious offense with a GD.  




12.  On 28 February 1995, the applicant was separated accordingly.  The 
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of paragraph 14-12b, 
due to misconduct.  He was assigned an SPD code of JKA for “misconduct” and an Reentry code of 3.  At the time, he had completed a total of 1 year, 
11 months, and 19 days of active military service.

13.  On 12 March 1999, the Army Discharge Review Board (ADRB), after careful consideration of his military records and all other available evidence determined the applicant had been properly and equitably discharged and voted to deny his request for an upgrade of his discharge and or a change in the narrative reason for separation.  

14.  Army Regulation 635-200 (Personnel Separations) 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.  In particular, paragraph 14-12b of this regulation provides the policy for discharging a member for “a pattern of misconduct” and paragraph 14-12c provides for discharging a member for “a commission of a serious offense.  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 for a Soldier discharged under this chapter.  However, the separation authority may direct a GD if such is merited by the Soldier’s overall record of service.

15.  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.  The version of the regulation in effect at the time stated, that the SPD code of JKA was the appropriate code to assign Soldiers separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason misconduct.  It also shows the SPD code of JKQ was the appropriate code to assign Soldiers separated under the provisions of paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the separation authority and narrative reason for separation should be corrected to show “administrative justification.”  However, there are no provisions within the Department of the Army that authorizes a separation or discharge for this reason.

2.  The evidence of record confirms that based on the applicant’s disciplinary history his unit commander recommended that he be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of “commission of a serious offense”; therefore, he would have been assigned the SPD code of “JKQ.”  However, his DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of “misconduct” and he was assigned an SPD code of “JKA.”  As a result, the separation authority and narrative reason for separation are incorrectly documented on his DD Form 214.

3.  However, in this case, correcting the applicant’s DD Form 214 would result in action that would be less advantageous to him.  It is the policy of the ABCMR not to correct an administrative error if the correction would result in a less favorable action to the applicant.

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)                                         AR20100020189



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ABCMR Record of Proceedings (cont)                                         AR20100020189



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