BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120010705 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) by removing from:

* Item 25 (Separation Authority) – the entry Army Regulation (AR) 635-200 (Personnel Separations), paragraph 14-12c
* Item 26 (Separation Code) – the entry "JKQ"
* Item 27 (Reentry (RE) Code) – the entry "3C"
* Item 28 (Narrative Reason for Separation) – the entry Misconduct – Commission of a Serious Offense – Absent Without Leave (AWOL)
* In effect, item 29 (Dates of Time Lost During This Period) – the entry "Under [Title 10] U.S. Code [Section] 972 19910517 – 19910728"

2.  The applicant states he was either on leave or pass at the time but the commander initiated the AWOL action without consulting with the unit administrator.  He previously appeared before the Army Discharge Review Board (ADRB) which granted him relief; he thought the corrections had been made.  It is an injustice to having to continue to suffer the adverse consequences of these entries.

3.  The applicant states he was transferred to the 2nd Battalion, 223rd Infantry Regiment in 1989 and immediately noticed there was no accountability for equipment.  He requested through his chain of command to conduct inspections to no avail; he was only told to seek help through the S-4 or go to another unit or higher headquarters to seek help through the G-4.  He found many Soldiers and leaders were misappropriating Government property and initiated various reports of survey against Soldiers/officers.  In retaliation, one of the captains who had been relieved initiated an adverse evaluation report against him.

4.  The applicant states that in March 1991 he slipped and fell in the motor pool and he was rushed to a local hospital and then to the Fort Dix, NJ, community hospital.  Upon his return from the hospital, he gave the unit administrator the profile and sick call slip indicating quarters for 24 hours; instead, his chain of command initiated paperwork reporting him AWOL.  During his off time, he assisted the Army hospital at Fort Hamilton, NY with mobilization for Operation Desert Shield/Storm as they were in need of Soldiers with certain military occupational specialties (MOSs).  He submitted a request to be assigned to that unit and instead of getting assignment orders he received attachment orders to an engineer brigade.  Upon his return from Desert Shield/Storm, he was ordered to remove his personal belongings and not return.

5.  The applicant states that, in the earlier months, he was a passenger in an automobile when it was stopped by base police; he was the only one arrested for a weapon found under the seat of the driver and owner.  This charge was later found untrue and dismissed but it happened after he had been discharged from active duty.  In July 1991, he was on convalescent leave but his chain of command reported him AWOL and refused to rescind this erroneous entry.  In September 1991, a medical evaluation board recommended his discharge for medical reasons.  In January 1992, he requested reenlistment and forwarded the paperwork through the chain of command.  In October 1992, he was given his discharge orders to report to Fort Devens, MA for discharge.

6.  The applicant further states he was always a professional noncommissioned officer (NCO) with a successful career and multiple awards and decorations; he served proudly and loved being a Soldier.  He was a good Soldier with a promising career, challenging assignments, and multiple awards and decorations.  There was a conspiracy by certain members of his chain of command to destroy his military career.  His Department of Veterans Affairs (VA) benefits are being withheld because of the many errors in his records.

7.  The applicant provides:

* Orders to active duty and/or assignment 
* Findings of a report of survey
* DA Form 2166-8 (NCO Evaluation Report)
* DA Form 3349 (Physical Profile)
* DD Form 689 (Individual Sick Slip)
* DA Form 4187 (Personnel Action) 
* Personnel Accountability Report
* DA Form 4187 volunteering to support Operation Desert Shield
* Attachment detail memorandum
* Hand-written note from his former company commander
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* DA Form 4187, convalescent leave
* Memorandum authorizing him convalescent leave
* DA Form 31 (Request and Authority for Leave)
* Civil Court dismissal charge
* Reissued 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 records show he was born on 16 May 1951.  

3.  He enlisted in the U.S. Army Reserve (USAR) on 20 May 1978.  He entered active duty for training (ADT) on 8 October 1978 and completed required training for MOS 91B (Medical Specialist).  He was honorably released from ADT on 14 July 1979.  

4.  He served through multiple extensions or reenlistments in a variety of USAR assignments and he attained the rank of staff sergeant (SSG)/E-6.  Additionally, he was awarded MOS 76Y (Unit Supply Specialist).  

5.  On 30 September 1989, he entered active duty in an Active Reserve Guard (AGR) status.  He was assigned to the 99th Signal Battalion, Brooklyn, NY, as the Company A Supply Sergeant.

6.  On 14 March 1990, his duty status changed from ordinary leave to civil confinement after he called his commander and informed him he was confined in Wilmington, NC.  He returned to military control on 29 March 1990.  It appears he was charged with assault with a deadly weapon inflicting serious injury and reckless operation.  He pled guilty to the charges and he was sentenced to imprisonment for 5 years, but the execution of the sentence was suspended and he was sentenced to a 5-year unsupervised probation after having served 30 days in jail. 

7.  On 23 March 1990, agents of the U.S. Army Criminal Investigation Command (CID), Fort Hamilton, NY, investigated the applicant for bigamy, larceny, and making a false official statement.  The investigation revealed that the applicant, while still legally married, entered into a common law marriage with another woman and documented this marriage with a notarized statement attesting to the fact that he fulfilled the requirements of common law marriage in South Carolina. He also obtained a document of an unknown origin to further record his spouse and implied they had been married by a minister in a bonafide marriage ceremony.  He presented this document to the Fort Hamilton Housing Office and between November 1989 and July 1990 he fraudulently obtained Government housing service and used the document to obtain a military ID card for this spouse. 

8.  On 14 March 1990, his duty status changed from ordinary leave to civil confinement.  He returned to military control on 29 March 1990.

9.  On 22 August 1990, his duty status was again changed from ordinary leave to civil confinement after he called his commander and informed him he was confined in Wilmington, NC.  He expected to be released from confinement on 21 September 1990.  The nature of the civilian charge is not available for review. 

10.  On 19 March 1991, his duty status was again changed from ordinary leave to civil confinement.  A subsequent Criminal Incident Report indicated a police patrol observed a suspicious parked car when suddenly an individual exited the care and yelled "he’s got a gun."  The officer drew his revolver and ordered all passengers to place their hands on the trunk.  All passengers, including the applicant, denied any knowledge of where the gun came from.  He was arrested, processed, and released to military officials. 

11.  On 23 April 1991, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 14 of AR 635-200 (Personnel Separations – Enlisted Personnel) for misconduct - commission of a serious offense.  

12.  On 23 April 1991, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him.  He requested consideration of his case by an administrative separation board, a personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

13.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him.  He also acknowledged he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws.

14.  On an unknown date, a military attorney reviewed the separation packet and found it legally insufficient.  He recommended re-initiation of the separation action under the proper paragraph of AR 635-200.  He also recommended the chain of command make a recommendation with respect to the characterization of service.  As such, no separation board convened and no convening order was signed.

15.  On 4 February 1992, in an action that superseded the previous recommendation, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(c) of Army Regulation 635-200 for misconduct - commission of a serious offense.  Specifically, he listed the reasons for the proposed action as stated below and he recommended an under other than honorable conditions discharge:

* Conviction by a state court for assault with a deadly weapon to commit serious injury
* AWOL for more than 30 days from 17 May to 29 July 1991
* False official statement in claiming he was married to another woman and producing a fraudulent certificate of marriage

16.  On 4 February 1992, the applicant's intermediate and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions characterization of service.

17.  On 20 February 1992, the applicant was provided with a memorandum that superseded all previous documents related to his earlier separation action.  The memorandum also included a waiver statement.  The applicant was given 7 days to respond and return the statement.  The acknowledgement memorandum clearly stated failure to return it within 7 days of receipt would constitute a waiver of his rights.  He did not respond. 

18.  On 16 April 1992, the Commanding General, 77th USAR Command, Fort Totten, NY strongly recommended the applicant's discharge with an under other than honorable conditions discharge. 

19.  On 5 August 1992, the applicant was again personally informed by his battalion commander of the requirement to execute a waiver statement within 7 days.  There is no indication he did so.  

20.  On 31 August 1992, the Commander, Headquarters Command Battalion, Fort Meade, MD, recommended approval of the separation action with the issuance of an under other than honorable conditions characterization of service.

21.  On 13 September 1992, a military attorney reviewed the separation action and found it legally sufficient.  He opined the applicant could be discharged with a general or an under other than honorable conditions characterization of service.  By regulation, when the new separation action was initiated, the applicant had 7 days to acknowledge, respond, and exercise his rights.  Failure to do so constituted a waiver of his rights.  Additionally, he was informed on      20 February 1992 as well as on 19 August 1991 but still failed to respond.  

22.  On 22 September 1992, the separation authority approved the applicant’s discharge, under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct - commission of a serious offense, and directed the applicant be furnished an under other than honorable conditions discharge and reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 2 October 1992.

23.  The DD Form 214 he was issued confirms he was discharged with an under other than honorable conditions characterization of service.  This form further confirms he completed a total of 3 years and 3 days of active service during this period.  This form shows in:

* Item 25 – AR 635-200, Paragraph 14-12c
* Item 26 – "JKQ"
* Item 27 – "RE-3C"
* Item 28 – "Misconduct - Commission of a Serious Offense AWOL"
* Item 29 – lost time "910517 – 910728"

24.  On 8 October 2004, the ADRB considered his petition for an upgrade of his discharge.  The ADRB determined his discharge was proper and equitable; however, it felt it was too harsh.  As such, the ADRB voted to re-characterize his discharge to a general, under honorable conditions discharge.  The ADRB also considered the reason for the discharge and found it both proper and equitable.  Accordingly, it voted not to change it.  

25.  The applicant's DD Form 214 was voided and he was reissued a new DD Form 214 that reflects his general discharge and the following entries:

* Item 25 – AR 635-200, Paragraph 14-12c
* Item 26 – "JKQ"
* Item 27 – "RE-3C"
* Item 28 – "Misconduct - Commission of a Serious Offense AWOL"
* Item 29 – lost time "910517 – 910728"

26.  He submitted:

	a.  A one-page document, Subject: Findings and Recommendations, Reports of Survey, undated, which shows financial liability was established for a captain and another Soldier.

	b.  DA Form 2166-8 for the rating period October 1989 through September 1990 which shows he was rated as a company supply sergeant.  His senior rater is listed as the same captain whose name was identified for financial liability.  

	c.  DA Form 3349, dated 14 March 1991 of a temporary nature and with an expiration date of 11 April 1991.  This profile shows he fractured his 2nd metacarpal right hand and had some assignment restrictions. 

	d.  DD Form 689, dated 15 March 1991, which shows he was given quarters for 24 hours.

	e.  DA Form 4187, dated 6 December 1990, which shows he requested a temporary tour of active duty to support Operation Desert Shield/Storm.

	f.  Endorsement, dated 6 December 1990, recommending approval of his detail to the unit he requested, 411th Engineer Brigade.

	g.  Hand-written note, dated 2 April 1991, which shows his company commander ordered he was not permitted in the company supply room without an escort. 

	h.  DA Form 268, dated 30 July 1991, which shows he was flagged for adverse action effective 30 July 1991. 

	i.  DA Form 4187, dated 30 July 1991, which shows he was placed in convalescent leave, effective 1500 hours on 30 July 1991. 

	j.  Memorandum, dated 30 July 1991, from a patient administrator to the applicant's company commander which shows the patient administrator recommended placing the applicant on convalescent leave from 30 July to 15 August 1991. 

	k.  DA Form 4187, dated 30 July 1991, which shows he was seen at Ainsworth Health Clinic on 30 July 1991 and he was given 30 days convalescent leave effective 30 July 1991 through 15 August 1991.  This form is signed by an official at the Personnel Management Branch of the 77th Army Reserve Command. 

	l.  DA Form 31, dated 30 July 1991, which shows his commander granted him convalescent leave from 30 July to 15 August 1991. 

	m.  A document, dated 17 February 1995, issued by the Supreme Court of the State of New York dismissing certain charges. 

27.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was 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.

28.  Army Regulation 635-200, paragraph 3-7a, states 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.

29.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The "JKQ" SPD code is the correct code for Soldiers separating under chapter 14-12c of Army Regulation 635-200 by reason of misconduct - commission of a serious offense.
30.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and U.S. Army Reserve.  It stated that individuals would be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty.  Table 3-1 included a list of Regular Army RE codes.

* An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met
* An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible unless a waiver is granted
* An RE-3C applies when a member has lost time

31.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of his discharge shows that SPD code "JKQ" has a corresponding RE code "3."

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed multiple serious offenses, starting out with proffering a fraudulent marriage certificate to the housing office while attempting to secure housing for himself and a woman not his wife and ending with a state conviction for assault with a deadly weapon.  Accordingly, his chain of command initiated separation action against him.

2.  The applicant elected a separation board and personal appearance before a separation board.  However, it appears the original separation action in April 1991 was not complete as evidenced by the legal insufficiency memorandum issued by a military attorney who reviewed the case. 

3.  It also appears that his chain of command adhered to the recommendation of the military attorney and re-initiated a new separation packet, albeit some 8 months later.  The new separation action incorporated a new instance of misconduct of AWOL from 17 May to 29 July 1991.  The immediate commander made it clear that the new action supersedes the previous action.  

4.  The applicant was advised of the proposed action and of the rights available to him.  He was also advised of the possible results and implications of a waiver of his rights.  He was given 7 days to return the acknowledgement form which warned him that failure to respond constituted a waiver of his rights.  He failed to respond.  His commander went to the extra extent of personally delivering the notification to him in an effort to provide him with a maximum opportunity to exercise his rights.  The applicant again failed to respond. 

5.  Based on the available evidence, the applicant clearly waived his rights to which he was entitled.  Accordingly, the separation authority approved his discharge from the Army.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. He was accordingly discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 due to this misconduct. 

6.  He petitioned the ADRB for an upgrade of his discharge.  The ADRB determined his discharge was proper and equitable; however, it felt it was too harsh.  As such, the ADRB voted to re-characterize his discharge to a general, under honorable conditions discharge.  The ADRB also considered the reason for the discharge and found it both proper and equitable.  Accordingly, it voted not to change it.  The upgrade of his discharge did not negate the misconduct that occurred.  As such, the reason for his separation remained the same: misconduct - commission of a serious offense. 

7.  His separation code, RE code, and narrative reason for separation were assigned based on the fact that he was discharged under the provisions of chapter 14-12c of Army Regulation 635-200 due to his misconduct - commission of a serious offense.  Absent the commission of this offense, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct - commission of a serious offense" and the appropriate separation code associated with this discharge is "JKQ" which is correctly shown on his DD Form 214.  

8.  An SPD Code of "JKQ" has a corresponding RE Code of 3.  Furthermore, an RE-3C applies when a Soldier has lost time.  Therefore, the RE Code of 3C is the appropriate code.  It is correctly listed on his DD Form 214 and there is no reason to change it. 

9.  The medical profile he provides, together with the sick-call slip and the convalescent leave he provides show he was authorized quarters on 30 July 1991 and convalescent leave from 30 July to 15 August 1991.  His AWOL began on 17 May 1991 and he was in a deserter status on 17 June 1991.  He returned to military control on 28 July 1991.  His lost time is correctly listed on his          DD Form 214 and there is no reason to change it.  

10.  In view of the foregoing evidence and after a comprehensive review of his case, the applicant failed to provide convincing evidence that warrant a change to his DD Form 214.  Therefore, he is not entitled to the 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)                                         AR20120010705



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ABCMR Record of Proceedings (cont)                                         AR20120010705



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