IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120009760 


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 the separation program designator (SPD) code on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from JKF to JKA.

2.  He states, in effect, that SPD JKF indicated "Desertion" and he has no days of absence without leave or desertion charges.  He contends the SPD JKA indicates "Pattern of Misconduct" which matches his narrative reason for separation.  He attests that desertion restricts certain benefits as a disabled American Veteran and he does not desire to be inaccurately listed as a deserter. 

3.  He provides his DD Form 214.

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's record shows he enlisted in the Regular Army (RA) on 23 September 1997.  Upon completion of initial entry training, he was awarded military occupational specialty 95B (Military Police).  The highest rank/grade he attained while serving on active duty was specialist (SPC)/E-4.

3.  On 20 September 2001, the applicant's unit commander notified him he was initiating action which could result in his separation from the Army with a general discharge, under honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct, commission of a serious offense.  The commander stated the specific reasons for this action were the applicant's:

	a.  receipt of field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) on 14 March 2001 for larceny of food, a violation of Article 121 of the UCMJ.

	b.  use of racist remarks while on duty, on or about 16 April 2001, a violation of Article 92 of the UCMJ.

4.  He was advised of his rights and the impact of the discharge.  He accepted his right to consult with legal counsel and indicated he would submit a statement in his own behalf.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  Although he indicated he would submit a statement it is not present in his record.

5.  On 26 September 2001, his defense counsel rendered a memorandum wherein he requested the administrative separation action against the applicant for commission of a serious offense be terminated and that he be granted an honorable discharge, which accurately reflected his service to his country, and which would allow him to keep his GI Bill benefits (which he would lose if he was given a general discharge).  His counsel's request was based upon the following:

	a.  The first offense mentioned in the notification memorandum was larceny of food from a dining facility, a violation of Article 121, UCMJ.  Examination of the applicant's Article 15 for that offense shows the larceny was for stealing food of approximately $27 in value.  The applicant was punished for the offense in March 

2000 and had served his punishment.  As a result of the punishment, the applicant was reduced in rank/grade from SPC/E-4 to private first class 
(PFC)/E-3, but had regained the rank of SPC.  He had put the offense behind him and gone on with his military career.  Counsel contended it was unfair to the applicant to resurrect the offense over 18 months later in a seeming attempt to "pad" a separation action.

	b.  The second offense mentioned in the notification memorandum, and presumably the one which is the primary basis for this action, was the applicant's alleged use of racist remarks while on duty, an alleged violation of Article 92, UCMJ (Failure to Obey Order or Regulation).  The punitive order or punitive regulation that the applicant was alleged to have violated was never identified.  Such lack of identification made it extremely difficult for any Soldier to defend against such charges, as the exact nature of the alleged violation cannot be identified.  If the regulation allegedly violated is not punitive in nature, an Article 92 violation cannot be identified.  Additionally, the applicant denied that he ever made such remarks while on duty, as alleged by the notification memorandum.

	c.  Counsel stated the applicant realized he was wrong in both cases, he admitted wrongdoing, and thought he had paid the penalty in full for the larceny offense.  For the second alleged offense, the applicant admitted wrongdoing (although not while on duty), and it was questionable whether the offense could even have been alleged without his admission (based upon evidence in the separation file).  The applicant had demonstrated an ability to move on from the offense, moving from a PFC to a promotable SPC.  The applicant had learned from his mistakes in the past and would learn from this mistake as well, if given the opportunity.  A permanent stain on his military record, as well as permanent prejudice against him in civilian life as a result of this action, in addition to the loss of his military educational benefits, was too harsh a punishment for the offenses outlined in this action.

6.  On 26 September 2001, the unit commander recommended that further rehabilitative efforts be waived and that the applicant be separated from the service with a general discharge, under honorable conditions.

7.  On 27 September 2001, the separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12c, and that he be furnished a general under honorable conditions characterization of service.




8.  On 12 October 2001, he was discharged accordingly.  His DD Form 214 shows:

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

9.  On 16 March 2009, the President of the Army Discharge Review Board informed him that the board reviewed his case and determined he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 deals with separation for various types of misconduct for which Soldiers may be separated prior to their normal expiration of term of service.  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.

11.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the following SPD codes were the appropriate codes to assign to Soldiers separated under the provisions of Army Regulation 635-200, for the paragraphs indicated:

	a.  JKA for paragraph 14-12b, for a Pattern of Misconduct.

	b.  JKF for paragraph 14-12c(1), for Desertion.

	c.  JKQ for paragraph 14-12c, for a Misconduct (Serious Offense).

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his SPD code should be corrected was carefully considered and found to have partial merit.



2.  He contends that his current SPD code of JKF indicates "Desertion" and he has no days of absence without leave or desertion charges.  A review of his record confirmed that he had no record days of absence and was not charged with desertion.  Therefore, his SPD code of JKF is in error.

3.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct, commission of a serious offense.  The evidence also shows the appropriate SPD code for this type of separation is JKQ.  Therefore, it would be appropriate to correct his DD Form 214 to reflect the correct SPD code in order to be in sync with his reason for discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 deleting the current entry in item 26 (Separation Code) of his DD Form 214 and replacing it with the entry "JKQ."

2.  The Board further determined that 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 correcting his SPD code to read "JKA."



      _______ _   __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)                                         AR20120009760





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120009760



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1