IN THE CASE OF:	  

		BOARD DATE:	    28 May 2013

		DOCKET NUMBER:  AR20120020285 


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.  He also requests correction of the narrative reason for separation from misconduct to something more favorable.

2.  The applicant states:

* he enlisted in the Army National Guard (ARNG) subsequent to his discharge from the Regular Army
* he has been serving in the ARNG for 7 years
* he regained his former rank and has completed the Warrior Leader Course
* he is also a Federal employee with outstanding reviews
* an upgrade would help advance his career
* he completed an honorable period of enlistment in 1999

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 April 2001
* National Guard Bureau Form 22 (Report of Separation and Record of Service)
* DA Form 2-1 (Personnel Qualification Record – Part II)


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 enlisted in the Regular Army on 30 October 1996 and he held military occupational specialties (MOS's) 11M (Fighting Vehicle Infantryman) and 95B (Military Police).

3.  He reenlisted in the Regular Army on 5 February 1999.  He served in a variety of assignments and he attained the rank/grade of specialist/E-4.

4.  On 11 November 1999, he was stopped by the Fort Hood, TX, Military Police for driving while intoxicated, driving without a license, and failing to maintain financial responsibility.

5.  On 22 November 1999, he was reprimanded by the 1st Cavalry Division Assistant Division Commander for driving under the influence of alcohol.

6.  On 21 March 2000, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for driving while impaired by alcohol in a reckless manner and causing a vehicular accident.

7.  On 13 March 2001, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct.  He cited the applicant's having received an Article 15 for driving while intoxicated; being charged with a suspended license, fleeing the scene of an accident and following too closely; reckless driving; and receiving negative counseling for being drunk on duty and disorderly conduct as reasons for the proposed action.  He recommended a general discharge under honorable conditions.

8.  On 13 March 2001, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently 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, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by an administrative separation board.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

9.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12b of Army Regulation 635-200.

10.  His intermediate commander recommended approval with the applicant's service characterized as general under honorable conditions. 

11.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct and directed his service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 27 April 2001.

12.  His DD Form 214 confirms he was discharged by reason of misconduct in pay grade E-1 on 27 April 2001 under the provisions of paragraph 14-12b of Army Regulation 635-200 with a character of service of under honorable conditions.  This form shows he completed 4 years, 5 months, and 28 days of creditable active service during the period under review.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) –"JKA"
* Item 28 (Narrative Reason for Separation) – "MISCONDUCT"

13.  On 7 March 2008, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

14.  Subsequent to his discharge from the Regular Army, he enlisted in the ARNG on 8 November 2005.  He served in MOS 31B (Military Police) and he was advanced to pay grade E-4 on 1 October 2008.  He was honorably discharged from the ARNG on 9 May 2009.

15.  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, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed.  Army policy states that a discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

16.  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.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  SPD code "JKA" is the correct code for Soldiers separating under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct – pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct ranging from multiple instances of being drunk on duty and/or being disorderly, to driving without a license or insurance while under the influence of alcohol, to causing an accident while impaired by alcohol and fleeing the scene of an accident.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record further shows the applicant's discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 for misconduct.   Absent the misconduct, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate separation code associated with this discharge is "JKA" which is correctly shown on his DD Form 214.

4.  His subsequent service in the ARNG does not mitigate his previous misconduct.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service for the period under review 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 discharge to fully honorable.

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 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)                                         AR20120020285



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ABCMR Record of Proceedings (cont)                                         AR20120020285



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