IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110001626 


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 that his general, under honorable conditions discharge be upgraded to honorable and that the narrative reason of "Misconduct - Pattern of Misconduct", be removed from his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was discharged under honorable conditions simply because he was not mature enough for the military in 1990.  He had continually made mistakes resulting in his discharge.  Eight years later, he enlisted in the Army National guard (ARNG) where he completed his military obligation and was discharged in the rank of specialist, pay grade E-4, with an honorable characterization of service.  He went to work for a military contractor in Iraq where he received numerous awards and recommendations from both officer and enlisted personnel.  He is proud of his military service but is embarrassed when he has to present his DD Form 214.

3.  The applicant provides copies of his DD Form 214 and NGB Form 22 (Report of Separation and Record of Service).

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.  On 17 January 1989, the applicant, at 18 years and 9 months of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  On 7 May 1989, the applicant was assigned for duty as a rifleman with Company B, 3rd Battalion, 22nd Infantry Regiment, located in Hawaii.

4.  Between June 1989 and September 1990, the applicant was counseled as follows:

* 12 June 1989: skateboarding in an unauthorized area after three prior warnings from the military police
* 31 July 1989: three bad checks
* 10 October 1989: apprehended by the military police for possession of alcohol under the age of 21 years
* 16 December 1989: underage drinking
* 19 December 1989: underage drinking
* 4 January 1990: Monthly counseling for December - Needed to set priorities and stop making stupid mistakes that were ruining his career
* 6 February 1990: Monthly counseling for January - Believed accident was alcohol related, needed to get off profile and start down the right path
* 12 March 1990: not at proper place of duty
* 16 March 1990: third offense of dishonored checks
* 24 April 1990: notice of rehabilitation transfer to different platoon in same company
* 19 June 1990: failed to follow instructions to sew patch on his uniform
* 31 July 1990: needed to improve personal appearance by shining boots and ironing uniform
* 10 September 1990: underage drinking and reporting for duty while drunk

5.  The applicant accepted the following nonjudicial punishments (NJP's):

* 7 February 1990: underage drinking on 16 December 1989
* 23 April 1990: failure to go to his appointed place of duty
* 10 September 1990: wrongful possession of gun powder in barracks room
* 17 September 1990: underage drinking and failure to report to morning formation

6.  On 5 October 1990, a mental status evaluation reported that the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was fit for separation action.

7.  On 10 October 1990, the applicant's company commander notified him that he was intending to take action to effect his discharge for a pattern of misconduct.  The commander cited the applicant's numerous incidents of misconduct to include five offenses of underage drinking, three dishonored check offenses, and two incidents of failing to go at the time prescribed to his appointed place of duty. His pattern of misconduct demonstrated a lack of motivation for continued service and adversely impacted on the good order and discipline within the battalion.  The commander recommended that he receive a general discharge.

8.  The applicant consulted with counsel concerning his rights.  He elected not to make a statement in his own behalf.  He understood that he could expect to encounter extreme prejudice in civilian life as a result of a general discharge.

9.  On 10 October 1990, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, for misconduct due to a pattern of misconduct as discussed above.  He stated that further rehabilitative efforts would be ineffective and not in the best interest of the Army.

10.  On 16 October 1990, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued DD Form 257A (General Discharge Certificate).

11.  Accordingly, on 26 October 1990, the applicant was discharged under honorable conditions.  His character of service is shown as under honorable conditions (general).  He was given a separation program designator (SPD) code JKM, a reentry code 3, and a narrative reason for separation as "Misconduct - Pattern of Misconduct."  He had completed 1 year, 9 months and 3 days of creditable active duty service.

12.  Army Regulation 601-210 prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE Codes including RA RE codes.  RE 3 applies to persons separated from their last period of service with a waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

13.  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 SPD code of JKM was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, Chapter 14, for misconduct due to a pattern of misconduct.  Additionally, Table 2-3 (SPD/RE Code Cross Reference Table), Army Regulation 635-5 (Separation Documents) establishes RE Code 3 as the proper RE code to assign to Soldiers for this reason.

14.  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 a pattern of misconduct.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  The NGB Form 22 provided by the applicant indicates that he had enlisted in the Nebraska ARNG on 24 January 1998; attained the rank of specialist, pay grade E-4, and was honorably separated on 20 April 2004.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to honorable because of his subsequent honorable service in the ARNG and follow-on work in Iraq as a contractor.  He further contends that the reason for his discharge should be removed from his DD Form 214 because it is embarrassing to him.

2.  The record shows the applicant was counseled on numerous occasions for various acts of misconduct and had accepted five NJP's.  This is clearly a pattern of misconduct.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  There is no apparent basis for removal or waiver of the applicant’s disqualification that established the basis for his discharge.  The applicant’s desire to remove from his DD Form 214 the narrative reason for his discharge because it is embarrassing to him is understood.  However, there are no provisions authorizing the change of a character of service or deleting the narrative reason for separation for this purpose.

6.  The applicant's subsequent service in the Nebraska ARNG is recognized and appreciated.  However, that service is separate and distinct from his active duty service.  Accordingly, it does not serve as a mitigating basis for changing the reason for his active duty discharge

7.  In view of the foregoing, 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 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)                                         AR20110001626





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ABCMR Record of Proceedings (cont)                                         AR20110001626



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