IN THE CASE OF:	  

		BOARD DATE:  4 October 2012

		DOCKET NUMBER:  AR20120006862 


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 an upgrade of his general discharge to an honorable discharge and that his narrative reason for separation be changed.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident with his girlfriend.  He states he served 60 months, to include combat, with no adverse actions.  He further states he was given the option to remain on active duty or be discharged after the findings and proceedings.  He claims he chose to be discharged so he could care for his mentally ill mother. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 27 February 1990.  He completed the training requirements and he was awarded military occupational specialty 11M (Fighting Vehicle Infantryman).  The highest rank/grade he attained while serving on active duty was specialist/E-4.  However, he held the rank/grade of private (PVT)/E-1 at the time of discharge.  

3.  His records contain Special Court-Martial Order Number 7, dated
23 November 1994, issued by Headquarters, Joint Readiness Training Center and Fort Polk, LA, which shows the applicant was found guilty of:

* wrongfully failing to store his privately owned weapon in the unit arms room
* wrongfully transporting a firearm onto Fort Polk
* willfully damaging a wall in military quarters
* committing an assault upon another by choking her with his hands
* committing an assault upon another by pointing a loaded firearm at them

4.  The sentence was adjudged on 25 October 1994 and approved on 
23 November 1994.  He was sentenced to forfeit $200.00 pay for 4 months, reduction to the rank/grade of PVT/E-1, and to be confined for 4months.

5.  On 14 February 1995, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, chapter 14 for misconduct – commission of a serious offense.  The commander further stated his reason for taking this action was the applicant’s conviction by a special court-martial and he recommended the applicant receive a general discharge.  The applicant was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him.  He declined the opportunity to consult with appointed counsel and did not submit statements on his own behalf.

6.  On 15 February 1995, the separation authority approved the applicant's discharge action under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a General Discharge Certificate.  On 27 February 1995, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged for misconduct.  He completed 4 years, 
8 months, and 23 days of creditable active service with lost time for the period 
25 October 1994 through 2 February 1995.  In addition, his DD Form 214 shows:


* his service was characterized as under honorable conditions 
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(1) with a separation program designator (SPD) code of JKF and an RE code of 3
* his narrative reason for separation was "misconduct" 

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

8.  There is no evidence nor did the applicant provide any evidence which shows he was given the option to remain on active duty or be discharged after the findings and proceedings.  In addition, he provides no evidence nor does his record contain any evidence that shows he chose to be discharged in order to care for his mother.

9.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

10.  Army Regulation 635-5-1 (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 SPD code JKF is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct (serious offense).

11.  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's request to upgrade his discharge was carefully considered and determined to be without merit.

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the statutes and regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.  The evidence also shows the applicant was assigned the appropriate SPD code of JKF and an RE code of 3 at the time of discharge.

3.  His separation code and narrative reason for separation were assigned based on the discharge separation authority of Army Regulation 635-200, chapter 14, paragraph 14-12c.  The underlying reason for his discharge was "misconduct."   The only valid narrative reason for separation permitted under paragraph 14-12c is "misconduct" and the appropriate separation code associated with this discharge is "JKF," which is correctly shown on his DD Form 214.

4.  The applicant was found guilty at a special court-martial of wrongfully failing to store his privately owned weapon in the unit arms room, transporting a firearm onto Fort Polk, damaging a wall in military quarters, committing an assault upon another by choking her with his hands, and assaulting another by pointing a loaded firearm at them.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his general discharge to an honorable discharge or to amend his narrative reason for separation.

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)                                         AR20120006862



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ABCMR Record of Proceedings (cont)                                         AR20120006862



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