IN THE CASE OF: 

		BOARD DATE:	    10 January 2013

		DOCKET NUMBER:  AR20120005477 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to upgrade his discharge and change the narrative reason for his separation to something that makes him eligible to receive Department of Veterans Affairs (VA) housing, dental and medical benefits.

2.  The applicant states he is currently homeless and has been for quite some time.  He contends that he was young when he was forced to enter the military service so he no longer had to deal with the verbal abuse from his stepfather.  He is now older and has made some improvements in his life.  He has graduated from college with a certificate in computers and has acquired a class "A" commercial license to drive trucks.  He has proven to himself as well as to his peers that he has beaten the odds by becoming a successful individual in society.  He feels he deserves an upgrade because he did serve his country, and if given the opportunity, he would do things differently.  He needs this upgrade so that he can get back up on his feet.

3.  The applicant provides copies of:

* DD Form 214
* Letter of support, dated 10 April 2012




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 24 October 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant accepted the following nonjudicial punishments (NJPs):

	a.  10 June 1985: for violation of Article 86 for missing morning formation and for violation of Article 92 for disobeying a lawful order;

	b.  17 December 1985: for violation of Article 86 for failing to go to his appointed place of duty at the prescribed time; and

	c.  6 January 1986: for violation of Article 89 for being disrespectful to his superior noncommissioned officer.

4.  On 11 December 1985, the applicant's commander recommended he be barred to reenlistment.  The commander based his action on the applicant's one NJP at the time, as well as his five returned checks, failure to come to attention, and missing a muster formation.  The applicant acknowledged receipt of the action and indicated he did not desire to submit a statement on his own behalf.  On 6 January 1986, the appropriate authority approved the bar to reenlistment.

5.  On 13 January 1986, the applicant underwent a mental status evaluation.  His behavior was found to be normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  The applicant was mentally responsible.  He was capable of participating in the separation processing.


6.  On 13 January 1986, the commander notified the applicant of his intent to separate him from the service under the provisions of Army Regulation 635-200, chapter 14, due to acts or patterns of misconduct.

7.  There is no evidence of record showing that the applicant consulted with counsel or elected to make any statement on his own behalf.

8.  On 22 January 1986, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued a discharge under honorable conditions.

9.  Accordingly, on 4 February 1986, the applicant was discharged under honorable conditions.  He had completed 1 year, 2 months, and 21 days of creditable active duty service, and had 20 days of lost time.  Accordingly, he was given a Separation Program Designator (SPD) Code of JKM.  

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-5-1 (Separation Program Designator (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 was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DD Form 214 should be corrected by upgrading his discharge and changing the narrative reason for his separation to something that makes him eligible to receive VA housing, dental and medical benefits.

2.  The applicant's misconduct resulted in his acceptance of NJP on three separation occasions.  Furthermore, he had several incidents involving returned checks.  This is clearly a pattern of misconduct.

3.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  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 obtain VA benefits based on his military service is understood, there are no provisions authorizing the change of a character of service or narrative reason for separation for this purpose.

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)                                         AR20120005477





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ABCMR Record of Proceedings (cont)                                         AR20120005477



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