IN THE CASE OF:	  

		BOARD DATE:	    29 March 2011

		DOCKET NUMBER:  AR20100023201 


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 change to item 28 (Narrative Reason for Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 March 1993.

2.  The applicant states her discharge is unjust for she did not commit a serious offense.  She states she asked to be separated from the Army by a chapter discharge, but it was not for misconduct.  She is now 48 years old and she seeks Federal employment.  However, the narrative reason for her discharge looks bad and challenges her character.

3.  The applicant provides a copy of her 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.  With prior enlisted service in the U.S. Army Reserve (USAR), the applicant completed her initial entry training and she was awarded military occupational specialty 95B (Military Police). On 26 November 1991, she enlisted in the Regular Army for a 5-year period.  On 9 December 1991, she was assigned to the 294th Military Police Company in U.S. Army, Europe (USAREUR) with duty in Germany.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 18 May 1992 for disobeying a lawful order from a superior noncommissioned officer (NCO).  On 17 June 1992, the suspension of her punishment from the 18 May 1992 NJP was vacated when she violated a lawful order from her commanding officer.  Records show she also accepted NJP on 17 March 1993 for failing to go at the time prescribed to her appointed place of duty.

4.  The applicant was counseled on nine separate occasions for the following infractions and offenses:

* on 15 April 1992, for being disrespectful toward a senior NCO and insubordination
* on 17 April 1992, for writing checks with insufficient funds in her bank account
* on 1 June 1992, for violating known published Army regulations, directives, and written policies
* on 16 October 1992, for misappropriating a Government vehicle
* on 13 January 1993, for nonpayment of her student loan debt and pending separation action

5.  On 5 January 1993, she received a bar to reenlistment.

6.  On 3 February 1993, the applicant was examined by a medical doctor and found fit for retention in accordance with Army Regulation 40-501 (Medical Fitness Standards), chapter 3.  During her mental status evaluation, she was found fully alert and oriented with her thinking process clear and thought content normal.  She was found mentally responsible and she had the mental capacity to understand and participate in separation proceedings.

7.  On 10 March 1993, the applicant was notified of her pending separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12c, for misconduct, commission of a serious offense.  The unit commander cited the following offenses:


* from 2 February through 22 March 1992, she unlawfully wrote with the intent to defraud, four checks with an estimated total value of $300.00
* on 9 April 1992, for disobeying a lawful order from an NCO
* on 1 June 1992, for disobeying a lawful written order from a commissioned officer
* on 16 October 1992, for wrongfully appropriating a Government vehicle, of a value more than $100.00
* on 13 January 1993, for failing to pay her debts to the Illinois Student Assistant Commission with an estimated sum of over $1,500.00

8.  Her commander advised her of her right to be represented by counsel, to submit written statements in her own behalf, to obtain copies of supporting documents, to waive any of these rights, or to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge.  She was informed she could request a hearing before an administrative separation board.

9.  On 10 March 1993, she acknowledged receipt of her pending separation action and consulted with counsel.  She waived consideration and a personal appearance before an administrative separation board.  She indicated she understood that she could expect to encounter prejudice in civilian life with a general discharge under honorable conditions.

10.  On 18 March 1993, her commanding officer recommended separation prior to the expiration of her term of service with issuance of a general discharge based on the aforementioned offenses. 

11.  On 19 March 1993, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph
14-12c, for misconduct, commission of a serious offense and directed the issuance of a General Discharge Certificate.

12.  The applicant was accordingly discharged on 26 March 1993.  She had completed 1 year, 4 months, and 1 day of net active service this period.

13.  Item 25 (Separation Authority) of her DD Form 214 for the period ending
26 March 1993 shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C."  Item 26 (Separation Code) shows the entry "JKQ."  Item 28 (Narrative Reason for Separation) shows the entry "Misconduct -Commission of a Serious Offense."


14.  On 29 March 2002, the Army Discharge Review Board, being convinced that the characterization of service and the reason for discharge were both proper and equitable, voted to deny relief.

15.  References:

	a.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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.

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

	c.  The Manual for Courts-Martial ,Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The following is the maximum punishment for the aforementioned offenses and all offenses include reduction to the lowest enlisted rank and total forfeiture of all pay and allowances:

* for debt, dishonorably failing to pay:  a bad conduct discharge (BCD) and confinement for 6 months 
* for willfully disobeying a lawful order of superior commissioned officer: punitive discharge (dishonorable discharge [DD] or BCD) and confinement for 5 years
* for willfully disobeying a lawful order of an NCO:  a DD or BCD and 2 years confinement 


* for contempt or disrespect to an NCO:  a BCD and 9 months confinement
* for wrongfully appropriating a Government vehicle, of a value more than $100.00:  a BCD and 6 months confinement 
* for writing checks with insufficient funds with intent to deceive of more than $100.00:  a DD or BCD and 5 years confinement 

DISCUSSION AND CONCLUSIONS:

1.  The ABCMR does not change the narrative reason for a discharge for the purpose of obtaining Federal employment benefits.  While she contends her narrative reason for separation looks bad and challengers her character, her record of service includes her acceptance of two NJPs, writing checks with insufficient funds with the intent to defraud, failing to pay just debts, being disrespectful to an NCO, disobeying a lawful order of a commissioned officer, and wrongfully appropriating a Government vehicle.  If she had been tried by a court-martial, her maximum punishment could have included a DD or BCD, confinement for 5 years, reduction to pay grade E-1, and total forfeiture of all pay and allowances.

2.  In retrospect, her chain of command was lenient when they initiated, recommended, and approved an administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense, instead of preferring court-martial charges.

3.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief to change her narrative reason for 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)                                         AR20100023201



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ABCMR Record of Proceedings (cont)                                         AR20100023201



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