BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120004875 


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 change of his narrative reason for separation.

2.  The applicant states:

* This was his first and last offense in the military
* The punishment of getting put out of the military was hard enough
* the narrative reason for separation shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates misconduct
* he received this narrative reason for separation because he broke a military procedural rule during the time he was on drill sergeant duty and instruction orders to a recruit
* his character of service was honorable
* his job performance and life since the military has been exemplary
* his military service contains numerous military decorations for superior service and valor including service and decorations during deployment to Kuwait

3.  The applicant provides a self-authored letter and a letter 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.  The applicant enlisted in the Regular Army on 7 April 1989.  He completed his training and he was awarded military occupational specialty 11M (fighting vehicle infantryman).  He served in Southwest Asia from 7 October 1990 to 17 April 1991.  On 29 September 1992, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 30 September 1992.  He served in Korea from 9 June 1993 to 8 June 1994.  He attained the rank/grade of staff sergeant (SSG)/E-6 on 8 January 1996.  He was honorably discharged on        29 January 1996 for immediate reenlistment.  He reenlisted on 30 January 1996 for a period of 4 years.

3.  On 18 May 1998, while serving as a Drill Sergeant, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by engaging in a personal association with a female trainee.

4.  On 1 June 1998, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense.

5.  He was removed from the Drill Sergeant Program on 11 June 1998.  On 18 June 1998, he was barred from reenlistment for improper association with a female trainee.

6.  He consulted with counsel and requested consideration of his case by an administrative separation board.  On 14 August 1998, the separation board found the applicant unfit for further service and recommended his separation with an under other than honorable conditions discharge.  On 10 September 1998, the separation authority approved the findings and recommendation of the administrative separation board and directed the issuance of an under other than honorable conditions discharge.

7.  On 18 September 1998, the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with an under other than honorable conditions discharge by reason of misconduct.  He completed 9 years, 5 months, and 12 days of creditable active service.  The DD Form 214 he was issued at the time shows in:

* item 24 (Character of Service) the entry "UNDER OTHER THAN HONORABLE CONDITIONS"
* item 25 (Separation Authority) the entry "AR [Army Regulation] 635-200, PARA [paragraph] 14-12C"
* item 26 (Separation Code) the entry "JKQ"
* item 28 (Narrative Reason for Separation) the entry "MISCONDUCT"

8.  On 6 April 2004, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgraded of his discharge.

9.  On 6 April 2005, the ADRB carefully examined the applicant's record of service during the period of enlistment under review.  There was a full consideration of all faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The ADRB did not condone the applicant's misconduct; however, it determined the characterization of his service was too harsh.  The ADRB found the applicant's misconduct was mitigated by the overall length and quality of his service.  Accordingly, the ADRB voted to grant relief by changing the characterization of his service to fully honorable.  However, the ADRB found the narrative reason for his discharge was both proper and equitable and voted not to change it.

9.  As a result, he was issued a new DD Form 214 that shows in item 24 the entry "HONORABLE."  However, items 25, 26, and 28 remained unchanged.

10.  He provided a letter of service, dated 22 November 2011, from his employer commending him for his dedication and contribution in supporting Operation Iraqi Freedom.

11.  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 minor disciplinary infractions, a pattern of misconduct, 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.

12.  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 JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports his contention this was his first and last offense in the military.  Evidence shows he received one NJP during his last enlistment in the Army.

2.  He contends his job performance and life since the military has been exemplary.  However, good post-service conduct alone is normally not a basis for changing a narrative reason for separation.

3.  His remaining contentions and military service were carefully considered.  However, his narrative reason for separation was administratively correct and in conformance with applicable regulations at the time of his separation.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120004875



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ABCMR Record of Proceedings (cont)                                         AR20120004875



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