IN THE CASE OF:	  

		BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110017209 


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, correction of his military records by:

	a.  upgrading his 1991 general discharge under honorable conditions to an honorable discharge,

	b.  changing his separation program designator (SPD) code from JKM to something more desirable such as LBK,

	c.  changing his reentry eligibility (RE) code from 3 to 1, and

	d.  changing his narrative reason for separation from "misconduct-pattern of misconduct" to "expiration of service obligation."

2.  The applicant states he served on active duty from 1980 to 1983 and was separated with an honorable characterization of service and an RE code 1.  He also served from 1994 to 2000 in the Army National Guard (ARNG) and was discharged with an honorable characterization of service and an RE code 1.  He requests these changes to reenter service in the ARNG.

3.  The applicant provides copies of his:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 September 1983
* DD Form 214 for the period ending 9 January 1991

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 3 September 1980, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 44E (Machinist).  He was released from active duty on 2 September 1983 due to the expiration of his term of service.  He attained the rank of specialist four/pay grade E-4 and completed 3 years of creditable active duty service.

3.  On 15 April 1987, the applicant again enlisted in the Regular Army in the rank of private/pay grade E-2.  He completed advanced individual training and was awarded MOS 19D (Calvary Scout).

4.  His assignments included:

	a.  Headquarters and Headquarters Company, 5th Battalion, 77th Armor Regiment, in the Federal Republic of Germany from July 1987 to August 1990 and

	b.  Adjutant General Detachment, Fort Benning, Georgia, from 15 August 1990 to 9 January 1991

5.  He received the following three mental status evaluations:

	a.  On 28 August 1990, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal and his memory was good.  There was no significant mental illness.  The applicant was mentally responsible.  He did not want to deploy with his unit and said he would be absent without leave to avoid deploying.

	b.  On 27 September 1990, the applicant's behavior was passive.  He was fully alert and oriented and displayed a depressed mood.  His thinking was clear, his thought content was normal and his memory was good.  He had suicidal ideations and was admitted to the inpatient psychiatry service.  On the day of his admission, he had purchased and fired a rifle in his home.  He told his wife he bought the weapon to kill himself.  He reported he was depressed and wanted a statement saying he was crazy so he could get out of the Army.  The applicant was diagnosed with a malingering and manipulative behavior.  He was found to be of a sound mind at the time of his alleged suicide attempt.

	c.  On 1 November 1990, the applicant's behavior was passive.  His alertness was dull.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content was normal and his memory was good.  He was mentally responsible.  No mental health problems were detected that required treatment.

6.  The applicant was counseled on the following three occasions:

	a.  on 10 October 1990, for making another suicide attempt by ingesting a box of Sudafed (pseudoephedrine used to relieve nasal congestion);

	b.  on 17 October 1990, for a pattern of misconduct including malingering by ingesting a box of Sominex (diphenhydramine used to relieve red, irritated, itchy, watery eyes; sneezing; and runny nose) in order to be non-deployable; and

	c.  on 18 October 1990, for refusing to draw his weapon as ordered.

7.  The applicant accepted nonjudicial punishment (NJP) on the following two occasions:

	a.  on 16 October 1990, for attempting to intentionally injure himself for the purpose of avoiding service as an enlisted person; and

	b.  on 26 October 1990, for failing to obey a lawful order to draw his weapon.

8.  On 29 October 1990, the applicant's commander initiated separation action under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to a pattern of misconduct.  The commander recommended issuance of a general discharge under honorable conditions.

9.  On 28 November 1990, the applicant consulted with counsel concerning his rights and waived consideration of his case by an administrative separation board.  He elected not to make a statement in his own behalf.

10.  On 10 December 1990, the commander recommended the applicant's separation from the service under the provisions of Army Regulation 635-200, chapter 14, due to his discreditable conduct that was prejudicial to good order and discipline.  The commander further stated the applicant had no potential for further military service.

11.  On 20 December 1990, the appropriate authority approved the recommendation for discharge and directed issuance of a General Discharge Certificate.

12.  On 9 January 1991, the applicant was discharged under honorable conditions.  He completed a total of 6 years, 8 months, and 25 days of creditable active duty service.  He was assigned an SPD code of "JKM" and an RE code of 3.  His character of service was under honorable conditions.  The narrative reason for his separation was a pattern of misconduct.

13.  The applicant enlisted in the ARNG on 12 January 1994 and was honorably discharged on 11 January 2000.

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

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and ARNG.  Chapter 3 prescribes basic eligibility for prior service applicants for enlistment and includes a list of Armed Forces RE codes.  RE code 3 applies to persons separated from their last period of service with a waivable disqualification.

16.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  The SPD code of JKM indicates a discharge for acts of misconduct not otherwise identified.  The SPD code of JKA indicates a pattern of misconduct.  Additionally, the SPD/RE Code Cross Reference Table establishes RE code 3 as the proper RE code to assign to Soldiers separated due to a pattern of misconduct.

17.  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.

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his 1991 general discharge under honorable conditions should be changed to an honorable discharge.  He further contends that his SPD code, RE code, and narrative reason for separation should be changed to something more favorable so he can reenter service in the ARNG.

2.  The record shows the applicant was counseled on several occasions and accepted NJP twice for misconduct.  Furthermore, three mental health evaluations resulted in a determination that he was malingering and manipulative.

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 were appropriate considering all of the facts of the case.

5.  The evidence of the applicant's subsequent service in the ARNG has been noted.  However, this service does not change or mitigate the circumstances surrounding his previous active duty service and discharge.

6.  There is no apparent basis for removal or waiver of the applicant's disqualification that established the basis for his discharge.  While the applicant's desire to reenter the ARNG is understood, there are no provisions authorizing the change of the character of service, RE code, or narrative reason for separation for this purpose.

7.  However, the applicant's SPD code was incorrectly entered on his DD Form 214.  Accordingly, the SPD code of JKM should be changed to JKA to properly indicate he was separated due to a pattern of misconduct.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his SPD code as JKA in item 26 of his DD Form 214 for the period ending 9 January 1991.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to any change in his characterization of service, reentry code, or narrative reason for separation.



      _____________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)                                         AR20110017209



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ABCMR Record of Proceedings (cont)                                         AR20110017209



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