IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110000467 


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, in effect:

* His general discharge be upgraded to honorable
* His rank be restored to private first class/E-3
* His narrative reason for separation, separation code, and reentry (RE) codes be changed
* The general counseling entries in Section III (Disciplinary Record) of his Personal Profile Summary be removed

2.  The applicant states:

* The punishment he received was too harsh
* He was granted partial relief on 4 October 2010 in the form of an upgrade of the characterization of his service to a general discharge 
* Since his discharge he has worked to straighten out his life and find a place in society for him and his family
* He has a job and hopes to complete his education
* One of the most significant obstacles he faces is that he is ineligible for reenlistment 
* He regrets that he used drugs
* His youth and inexperience combined with an intolerant command climate led him to his mistakes
* He believes he would have made a valuable contribution to the Army and he still can
* Due to his discharge he has faced substantial prejudice and hardship; he believes it has served its purpose
* His request is justified due to the Army's improper use of limited use evidence during the separation process
* A drill instructor hyper extended his neck and he was struck in the head with the main gun tube of an M1A1 tank

3.  He points out that he received counseling on:

	a.  28 July 1995, for failure to repair (FTR) he was not called for any formations so his roommate and gunner advised him to look for housing during this time.

	b.  18 August 1995, for FTR, however, he was at the Battalion First Aid Station and his roommate and gunner was aware of his location.

	c.  11 January 1996, for disobeying a noncommissioned officer (NCO), this was the first time he was issued a shortage card.

	d.  19 January 1996, for disobeying an NCO, his mop suit was stolen by another Soldier to whom he had loaned it.

	e.  31 January 1996, for FTR, he had his second visit with the ADAPCP [Alcohol and Drug Abuse Prevention and Control Program] and his chain of command was aware of.

	f.  1 March 1996, counseling for FTR, he was at his appointed place of duty on time as directed for his physical.    

	g.  after a drill instructor hyper extended his neck and he was struck in the head with the main gun tube of an M1A1 tank.

4.  In an undated letter, he indicated his discharge should be upgraded to honorable because:

* His conduct and efficiency ratings/behavior and proficiency marks were mostly pretty good
* His record of promotions showed he was generally a good service member
* His record of nonjudicial punishment (NJP)/Article 15s show only isolated or minor offenses
* His ability to serve was impaired by his youth and immaturity, financial problems, racial discrimination, and he was not working in the field he was trained for
* His punishment was harsher than others for the same offense
* His command abused its authority when he was given a bad discharge
* He was being considered for a physical disability discharge which he was unfairly denied 

5.  The applicant provides an attachment which outlines 10 enclosures. 

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.  He was born on 18 June 1974.  He enlisted in the Regular Army on 
16 February 1995 for a period of 3 years.  He completed his training and was awarded military occupational specialty 19K (M1 Armor Crewman).  He attained the rank of private first class/E-3.    

3.  He was enrolled in the ADAPCP for alcohol dependence and marijuana abuse in January/February 1996.

4.  On 7 February 1996, NJP was imposed against the applicant for using marijuana during the period 4 December 1995 and 4 January 1996.  He was reduced to E-1.

5.  On 4 April 1996, the applicant was notified of his pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), for misconduct (commission of a serious offense).  The unit commander recommended that the applicant be issued a discharge under other than honorable conditions for FTR, dereliction of duty, disobeying an NCO, and two counts of using marijuana.

6.  On 4 April 1996, he consulted with counsel and requested consideration of his case by an administrative separation board.

7.  On 17 May 1996, a board of officers convened and the applicant appeared with counsel.  The board of officers recommended that he be discharged from the military under the provisions of Army Regulation 635-200, paragraph 14-12c, with the issuance of an under other than honorable conditions discharge.  During his testimony, he stated, in pertinent part "I don't have any explanation for why I was FTR the first three times I was counseled.  On the day of my three counts of FTR we had a four day weekend and I was told we wouldn't come to formation the following Monday.  That Monday we had a formation and I missed it.  I've been told that there is no excuse for being late to formation."  He also admitted to using marijuana on two occasions.   

8.  On 22 May 1996, the separation authority approved the board's recommendation.

9.  On 5 June 1996, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense) with the issuance of an under other than honorable conditions discharge.  He had served a total of 1 year, 3 months, and 20 days of creditable active service.

10.  Item 25 (Separation Authority) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C(2)."  Item 26 (Separation Code) of his DD Form 214 shows the entry "JKK."  Item 27 (RE code) shows the entry "3."  Item 28 (Narrative Reason for Separation) of his DD Form 214 shows the entry "MISCONDUCT."

11.  On 26 October 2010, the Army Discharge Review Board (ADRB) upgraded the applicant's characterization to general under honorable conditions.  The Board determined the characterization of his service was too harsh and inequitable.  His ADRB proceedings state, in pertinent part "Furthermore, the analyst noted the applicant's issue regarding the introduction of limited use evidence during the administrative separation board proceedings; however, the applicant initially introduced the limited use information to the General Court-Marital Convening Authority (GCMCA) in a letter informing the GCMCA that he was a self-referral to ADAPCP, thereby nullifying the limited use policy in the discharge process. 



12.  DA Forms 4856 (General Counseling Form) show he was counseled on:

* 28 July 1995 for 3 counts of FTR
* 18 August 1994 for failure to make formation
* 11 January and 19 January 1996 for failure to follow orders
* 31 January and 1 March 1996 for FTR

13.  Section III of his Personal Profile Summary shows the following entries under General Counseling:

* 960301 [1 March 1996] - FTR
* 960131 [31 January 1996] - FTR
* 960119 [19 January 1996] - disobeying an NCO
* 960111 [11 January 1996] - disobeying an NCO
* 950818  [18 August 1995] - FTR
* 950728 [28 July 1995] - FTR

14.  There is no evidence of record which shows the applicant was promoted to E-3 following his NJP action.
 
15.  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 prescribes 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.

16.  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.

17.  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 SPD's to be used for these stated reasons.  The regulation states the reason for discharge based on SPD code JKK is misconduct and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2).
18.  Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of armed forces RE codes.

* RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated

* RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable

* RE-4 applies to persons separated from their last period of service with a non-waivable disqualification.  

19.  The SPD/RE Code Cross Reference Table, dated 20 September 1993, shows that Soldiers assigned an SPD code of JKK will be assigned an RE code of 4.

20.  Paragraph 10-1 (Reductions) of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, in pertinent part, that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions the Soldier will be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  He contends his ability to serve was impaired by his youth and immaturity.  However, age is not a sufficiently mitigating factor.  The applicant was almost 
22 years old when he enlisted and successfully completed training.
 
2.  Although he contends financial problems impaired his ability to serve there is no evidence that he was having financial problems in 1996 that interfered with his ability to perform his military duties or that they were the underlying cause for the misconduct that led to his discharge.  

3.  He also contends his ability to serve was impaired due to racial discrimination.  However, there is no evidence of record which shows the applicant was a victim of racial discrimination.

4.  He contends he was being considered for a physical disability discharge and was unfairly denied one.  However, there is no evidence and he provided no evidence which shows he could not perform his duties while on active duty.  

5.  His contention the "Army's improper use of limited use evidence during the Separation Board" was noted.  However, as previously advised by the ADRB, the applicant initially introduced the limited use information to the GCMCA in a letter informing the GCMCA that he was a self-referral to ADAPCP, thereby nullifying the limited use policy in the discharge process. 

6.  He contends his punishment was too harsh.  However, the governing regulation states that an individual separated by reason of misconduct would normally be furnished a discharge under other than honorable conditions, which he received.  The ADRB upgraded his discharge under other than honorable conditions to a general discharge in 2010.

7.  His record of service included one NJP for using marijuana.  As a result, his record of service he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  There is insufficient evidence to warrant an honorable discharge.

8.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

9.  He requests his rank be restored to E-3.  However, since the separation authority directed the issuance of a discharge under other than honorable conditions, in accordance with the governing regulation the applicant was reduced to the lowest enlisted rank.  There is no evidence which shows he was promoted to E-3 following his NJP action.  Therefore, there is no basis for granting the applicant’s request to restore his rank to E-3. 

10.  His narrative reason for separation and separation code were administratively correct and in conformance with applicable regulations at the time of discharge.  Therefore, there is no basis for granting the applicant's requests to amend these items on his DD Form 214.  

11.  He wants his RE code changed.  However, the governing regulation states Soldiers assigned an SPD code of JKK will be assigned an RE code of 4.  His DD Form 214 shows he was assigned an RE code of 3.  Therefore, there is insufficient evidence on which to amend his RE code.         

12.  His request to remove the general counseling entries from his Personal Profile Summary and his contentions surrounding the circumstances were noted.  However, since the evidence of record shows he was counseled for these circumstances there is insufficient evidence on which to grant the 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)                                         AR20110000467



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ABCMR Record of Proceedings (cont)                                         AR20110000467



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