IN THE CASE OF:	  

		BOARD DATE:	    6 October 2011

		DOCKET NUMBER:  AR20110005596 


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, change to the narrative reason for his separation on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  He states he was not afforded the opportunity to go to a rehabilitation center as he requested.  He was also not moved to a different command.  He states he was a valued Soldier and noncommissioned officer (NCO) who feels he was made an example of.  He has received the help he needed and is bettering his life.  He continues to be a public servant, he is going to college to get a degree in emergency medical science, and he has worked for a rescue squad.  He is still seeking help through the Department of Veterans Affairs (VA).  He finally states the civil charges that led to his discharge were all dismissed.

3.  He provides:

* his Emergency Medical Technician (EMT) exam results
* letters from the VA informing him of award of educational benefits and confirming his enrollment in the VA health care system
* documents pertaining to the resolution of civil charges against him


CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 30 December 2003 and he reenlisted on 15 November 2007.  He served in military occupational specialty 25N (Nodal Network Systems Operator-Maintainer).  He was promoted to the rank/grade of sergeant (SGT)/E-5 effective 1 October 2007.

2.  A DA Form 4187 (Personnel Action) shows his duty status was changed from present for duty to absent without leave (AWOL) effective 0900 hours on 4 February 2008.  A second DA Form 4187 shows his duty status was changed from AWOL to present for duty effective 0630 hours on 5 February 2008.

3.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), shows he was flagged for adverse action effective 6 February 2008.

4.  On 25 February 2008, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 4 to 5 February 2008.  His punishment was reduction to specialist (SPC)/
E-4, restriction for 45 days, and forfeiture of $1,018.00 pay per month for 2 months.  The portion of his punishment pertaining to reduction and restriction were suspended if not vacated before 12 August 2008.

5.  On 17 March 2008, he received disciplinary counseling from his first sergeant (1SG) for failing to report.  The form shows he failed to report for an accountability formation on 17 March 2008 and he was found to have been drunk on duty.  His 1SG informed him that because he was enrolled in the Army Substance Abuse Program (ASAP) he was not to drink alcohol.  His 1SG also informed him that he and the chain of command were recommending punishment under the UCMJ and that his chain of command had decided to vacate the suspension of his restriction and reduction to SPC/E-4.

6.  On 25 March 2008, the suspension of his reduction and restriction were vacated based on his failing to go at the time prescribed to his appointed place of duty on 17 March 2008.

7.  His record includes a memorandum by the Clinical Director, ASAP, Womack Army Medical Center, Fort Bragg, NC, dated 26 March 2008, showing he was screened on 10 September [2007] as a self-referral to ASAP, and as a result of his self-referral, he was enrolled in the program.  The Clinical Director indicated he was scheduled for twelve group sessions and attended eleven, and he was scheduled for and attended three individual sessions.  He further indicated that 


his two alcohol-related incidents (missing movement to the field and being found in an intoxicated state) indicated he had not used the treatment tools available to him and his prognosis for successful completion [of ASAP] was poor.

8.  A second DA Form 268 shows he was flagged for field-initiated elimination effective 9 April 2008.

9.  A DA Form 3975 (Military Police Report) shows that on 19 July 2008, he was apprehended by civil authorities for driving while impaired after he was involved in a minor traffic accident.

10.  On 21 July 2008, his 1SG counseled him on the intentions of his chain of command following his actions on 19 July 2008.  He was informed that he would be recommended for separation from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct, and the implications of such a discharge.

11.  On 29 July 2008, he acknowledged he had been notified by his commander of the initiation of an action to separate him for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b.  His commander recommended he receive an honorable discharge.

12.  In the recommendation for separation, his commander indicated other disposition was not appropriate or feasible because further rehabilitative attempts were not practical.  The intermediate authority recommended approval of his discharge with a general discharge.  The intermediate authority did not recommend a rehabilitative transfer or other disposition.

13.  On 7 August 2008, the separation authority approved the recommendation to discharge him and directed he receive a general discharge.  On 19 September 2008, he was discharged accordingly.  He completed 4 years, 8 months, and 19 days of active military service.  The DD Form 214 he was issued at the time shows in:

* item 26 (Separation Authority) the entry "AR (Army Regulation) 635-200, Para (Paragraph) 14-12b"
* item 26 (Separation Code) the entry "JKA"
* item 28 (Narrative Reason for Separation) the entry "Pattern of Misconduct"


14.  On 1 February 2010, the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 19 November 2010, after carefully examining the applicant's record of service during the period of enlistment under review, the board determined his discharge was both proper and equitable and unanimously voted to deny relief.  As a result, on
23 December 2010, the applicant was informed by letter that his request for a change in the character and/or reason of his discharge was denied.

15.  He provides documents certified by the Clerk of Superior Court, Cumberland County, NC showing citations for failing to reduce speed and driving while impaired were disposed with no fine or restitution paid.  He also provides documents showing he passed an EMT-Basic exam, he was awarded educational benefits under the Montgomery GI Bill, and he is enrolled in the VA healthcare system.

16.  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 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.

17.  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 that the SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to change the narrative reason for his separation


2.  He has not provided documentation showing, nor does the evidence of record show, any irregularities in the administrative proceedings that led to his discharge or that his rights were not protected throughout the separation process.

3.  He states he was not afforded the opportunity to go to a rehabilitation center or to move to a different command.  However, the evidence of record shows he was enrolled in ASAP based on his own referral and, while enrolled in the program, he continued to engage in behavior that resulted in NJP and vacation of a suspended punishment.

4.  It was his chain of command's responsibility to determine if his rehabilitation was impracticable or unlikely to succeed.  Based on the behavior he exhibited over several months, his chain of command made the reasonable determination that further rehabilitative attempts were not practical and that he should be discharged for his pattern of misconduct.

5.  Although he indicates he believes civil charges against him led to his discharge, the record shows he was flagged for field-initiated elimination effective 9 April 2008, well before he was apprehended for driving while impaired in July 2008.  While it appears the charge was dismissed, his apprehension on this charge was another event in a series of events involving discreditable involvement with civil or military authorities.  Further, a conviction is not a requirement for administrative separation under the provisions of Army Regulation 635-200, chapter 14.

6.  Based on the authority for his separation he was assigned the SPD code of "JKA" which only applies to the narrative reason for separation of a "pattern of misconduct."  Therefore, the respective entry on is DD Form 214 is correct.

7.  His efforts to improve himself in civilian life are admirable.  However, in view of the foregoing, there is an insufficient basis upon which to grant the relief he requests.

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)                                         AR20110005596



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ABCMR Record of Proceedings (cont)                                         AR20110005596



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