BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110009899 


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, that his discharge be upgraded to honorable and that item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "Misconduct - Commission of a Serious Offense" to a more favorable reason.

2.  The applicant states:

* He was a good Soldier with a promising career
* He was serving in Southwest Asia when he received news that his wife had left him and he subsequently fell into a deep depression
* He feels guilt and shame for his actions
* He recently experienced some medical issues that need attention

3.  The applicant provides:

* DA Form 2-1 (Personnel Qualification Record)
* DA Form 3975 (Military Police Report) with sworn statements and allied documents
* Separation packet
* Five character reference letters/statements of support





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 records show he enlisted in the Regular Army on 8 October 1986 and he held military occupational specialty 19D (Cavalry Scout).  He served in Southwest Asia from 11 August 1990 to 16 December 1990.

3.  His records show he was awarded the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Expert Marksmanship Qualification Badge with Grenade Bar, Parachutist Badge, Army Good Conduct Medal, Army Achievement Medal, Army Commendation Medal, Non-commissioned Officer Professional Development Ribbon, and Overseas Service Ribbon.

4.  On or about 6 December 1990, a Military Police patrol responded to an incident concerning the applicant threatening another Soldier with a loaded weapon.

5.  On 11 December 1990, subsequent to a mental status evaluation, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for misconduct - commission of a serious offense.  Specifically, the immediate commander cited the applicant’s threatening another Soldier with a loaded weapon. 

6.  On 11 December 1990, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by an administrative separation board, waived a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

7.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws.

8.  On 11 December 1990, the applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct with the issuance of an honorable discharge.  He further requested a waiver of the requirements for rehabilitation and indicated that further rehabilitation would not have been feasible and would have created serious disciplinary problems or a hazard to the mission and the member. 

9.  His intermediate commander recommended approval of the separation for misconduct, commission of a serious offense with the issuance of a general, under honorable conditions discharge.

10.  On 13 December 1990, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense, and directed the applicant be furnished a general, under honorable conditions discharge.  Accordingly, the applicant was discharged on 29 January 1991.

11.  The DD Form 214 he was issued confirms he was separated with a general, under honorable conditions discharge.  This form further confirms he completed a total of 4 years, 3 months, and 22 days of creditable military service.  This form shows in:

* Item 26 (Separation Code) - "JKQ"
* Item 28 - "Misconduct - Commission of a Serious Offense"

12.  He submitted four character reference letters or statements of support from various individuals who attest to his honesty, character, morality, and standing in the community.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

15.  Army Regulation 635-200, paragraph 3-7a, states 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.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed a serious offense in that he threatened another Soldier with a loaded weapon.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He was accordingly discharged under the provisions of paragraph     14-12c of Army Regulation 635-200 due to this misconduct.  It appears his command may have considered the applicant’s circumstances when he was given a general discharge instead of the normal under other than honorable conditions discharge.  However, there is an insufficient basis on which to upgrade his discharge to fully honorable.

2.  His separation code and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 due to his misconduct - commission of a serious offense.  Absent the commission of this offense, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - commission of a serious offense" and the appropriate separation code associated with this discharge is "JKQ" which is correctly shown on his DD Form 214.  

3.  In view of the foregoing evidence, he is not entitled to 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)                                         AR20110009899



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ABCMR Record of Proceedings (cont)                                         AR20110009899



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