IN THE CASE OF:	  

		BOARD DATE:	1 March 2012

		DOCKET NUMBER:  AR20110016980


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 correction of his narrative reason for separation to show he was discharged due to retirement or grant him fair compensation in the form of separation pay.  

2.  The applicant states:

* he served on active duty 15 years with a flawless record and no incidents of nonjudicial punishment
* he was chaptered out of the Army for a Driving Under the Influence (DUI) conviction he received in January 2010 – this punishment was unfair
* he served his country exceptionally well through numerous overseas deployments
* other Soldiers in his unit received multiple DUIs and were not chaptered out of the Army
* he understands his actions were unsatisfactory; he enrolled himself in the Army Substance Abuse Program (ASAP) while still on active duty – unfortunately, he was not given ample time to complete the program
* after his discharge, his wife deserted him and he was diagnosed with post-traumatic stress disorder (PTSD), anxiety, night terrors, depression, and several other issues he's currently dealing with
* he no longer consumes alcohol and he is enrolled as a full time student at Austin Peay State University
* his time served in the Army was of great value to himself, his country, and his fellow Soldiers – he requests the Board's fair and impartial judgment in his case
3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, no additional actions.

2.  Counsel states:

* the applicant's record is creditable and he was on the path to a successful career with more than 15 years of military service and the completion of more than one leadership course
* the applicant deployed on more than one occasion and received numerous awards
* the applicant made several attempts to get help from the ASAP
* the issues raised by the applicant advance his contentions and substantially reflect the probative facts needed for an equitable review

3.  Counsel provides the applicant's DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 January 1996.  He completed training and was awarded military occupational specialty 11B (Infantryman).  

2.  His records show he deployed overseas in support of the following operations: 

* he deployed to Kosovo from on or about 15 August 2000 to 10 February 2001
* he deployed to Iraq from on or about 28 September 2005 to 18 September 2006
* he deployed to Iraq from on or about 21 September 2007 to 22 November 2008

3.  His records show he was arrested and charged with DUI in Christian County, KY on 2 occasions:  15 January 2004 and 15 January 2010.

4.  On 19 February 2010, while serving in the rank of sergeant first class (SFC)/E-7, he was reprimanded by the Deputy Commanding General (Support), 101st Airborne Division (Air Assault), Fort Campbell, KY, for refusing to take a lawfully-requested test to measure the alcohol content of his breath, upon which there became reasonable suspicion he was driving under the influence of alcohol.  On 5 March 2010, he acknowledged receipt of the memorandum of reprimand.  On 15 March 2010, he submitted his rebuttal, in which he denied driving under the influence of alcohol.

5.  On 22 July 2010, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct.  On 22 July 2010, the applicant acknowledged receipt of the notification memorandum.

6.  On 29 July 2010, his immediate commander formally recommended the applicant's separation from the Army under the provisions of Army Regulation 635-200, chapter 14.

7.  On 10 August 2010, after consultation with counsel, he acknowledged he had been advised by counsel of the basis for the contemplated action to separate him under Army Regulation 635-200, chapter 14, and its effect, of the rights available to him and of the effect of any action taken by him in waiving his rights.  Further, he requested a personal appearance before and consideration of his case by an administrative separation board, and representation by counsel at his administrative separation board.  He chose not to submit statements in his own behalf.

8.  On 12 August 2010, the separation authority referred the applicant's case to an administrative separation board.

9.  On 30 August 2010, an administrative separation board convened to consider the applicant's separation action.  The board recommended the applicant's separation for misconduct, and further recommended the suspension of his separation for a period of 12 months.

10.  On 29 September 2010, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of a serious offense).  He rejected the administrative separation board's recommendation that he suspend the applicant's separation. He further directed the applicant receive an honorable discharge.

11.  On 14 January 2011, he was discharged under the provisions of Army Regulation 635-200, chapter 14, with an honorable discharge.  His DD Form 214 shows he was credited with the completion of 15 years and 1 day of total active service.  The highest rank/grade he attained while serving on active duty was SFC/E-7.  Item 26 (Separation Code) of his DD Form 214 contains the code of "JKQ."
12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

   a. 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.

   b. Chapter 12 establishes policy and prescribes procedures for the voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers on active duty who are retiring in their enlisted status.  It provides that Soldiers who have completed 20, but less than 30 years of active federal service in the United States Army may, at the discretion of the Secretary of the Army, be retired at their request.  The Soldier must have completed all required service obligations at the time of retirement.  Upon retirement, the Soldier is transferred to the United State Army Reserve (USAR) (Retired Reserve), and remains in this status until active service before retirement and the period served in the USAR (Retired) equals 30 years.  It further provides that the Soldiers of the Regular Army must be on active duty when they retire.  

   c. Chapter 14 establishes policy and prescribes procedures for separating Soldiers for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a Soldier 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.  The separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  A general court-martial convening authority may approve, or delegate approval authority for, an honorable discharge.

13.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 (Narrative Reason for Separation) will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), paragraph 2-1, provides that SPD codes are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty and the SPD codes to be entered on the DD Form 214.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  The regulation shows that the separation program designator “JKQ,” as shown on the applicant’s DD Form 214, specifies the narrative reason for discharge as “Misconduct – Commission of a Serious Offense” and that the authority for discharge under this separation program designator is “Army Regulation 635-200, Chapter 14-12c."  

15.  Department of Defense Instruction (DODI) 1332.29, subject: Eligibility of Regular and Reserve Personnel for Separation Pay, dated 20 June 1991, incorporating Change 2 dated 20 September 2011, provides the eligibility criteria for entitlement to separation pay.  Paragraph 3.4 (Limitations on Eligibility for Separation Pay), sub-paragraph 3.4.9 provides that enlisted Soldiers separated for unsatisfactory performance or misconduct, as specified in DOD Instruction 1332.14, are not eligible for separation pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his narrative reason for discharge should be changed from "misconduct" to "retirement" or he should be granted separation pay as compensation for his 15 years of active service.

2.  The evidence of record shows that he was charged with misconduct and was notified of the initiation of separation action.  He acknowledged receipt of the notification and requested an administrative separation board.  Accordingly, a board convened, considered his case, and recommended his separation, albeit suspended.  The evidence further shows the separation authority considered the 
board's recommendation prior to directing the applicant's discharge.  The applicant was separated with an honorable discharge.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s narrative reason for separation was assigned based on the fact that he was separated under the provisions of paragraph 14-12b of Army Regulation 635-200 due to misconduct.  The underlying reason for his discharge was misconduct.  Absent the misconduct, there was no fundamental reason to process the applicant for discharge.  He did not meet the criteria for transfer to the Retired Reserve, so he could not have been retired.  The only valid narrative reason for separation permitted under this paragraph is "misconduct." 

4.  In accordance with DODI 1332.29, enlisted Soldiers separated for misconduct are not eligible for separation pay.
5.  In view of the foregoing, it would be inappropriate in this case to change his narrative reason for separation from "misconduct" to "retirement" or to amend his discharge orders to show he is entitled to separation pay.

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)                                         AR20100022260



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ABCMR Record of Proceedings (cont)                                         AR20110016980



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