IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120022463 


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 to the narrative reason for his separation from "misconduct - pattern of misconduct" to "service-connected disability"
* restoration of his rank/grade to specialist four (SP4)/E-4
* award of the Overseas Service Ribbon

2.  The applicant states:

* he has a service-connected disability, rated at 100 percent by the Department of Veterans Affairs (VA)
* the rank/grade of SP4/E-4 was automatic after 24 months of overseas service in his unit in Germany
* he has a mental disease and condition that occurred in service or was aggravated by service, which was the reason for his misconduct
* he served overseas in Germany but the Overseas Service Ribbon is not listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty)

3.  The applicant provides:

* DD Form 214
* Letter from the VA, dated 17 July 2012
* VA Appeal Decision

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 12 August 1987.  He held military occupational specialty 13B (Cannoneer).  His record further shows he served in Germany from 7 December 1987 to 12 January 1990 and he was credited with a completed overseas tour.  He was advanced to private first class (PFC)/E-3 on 12 August 1988.

3.  His service record contains an extensive history of negative counseling by members of his chain of command for various infractions, including:

* non-payment of just debts
* multiple instances of being late for duty
* failing to follow orders
* substandard/poor appearance/uniform
* failing the skill qualification test
* lacking in Soldiering skills

4.  On 8 November 1988, he was arrested by the Bamberg Military Police, Germany for the criminal offenses of assault, wrongful damage of private property, and wrongful damage of host government property.  An investigation revealed he became upset and struck a German female on the face and damaged property before leaving the scene.  He was released to his unit.

5.  On 15 June 1989, he was convicted by a summary court-martial of one specification of wrongfully appropriating whiskey, cologne, and hairspray, the property of a German national; and one specification of breaking restriction.  The court sentenced him to confinement for 30 days, forfeiture of pay for one month, and a reduction to private (PV1)/E-1.  The convening authority approved the sentence on 23 June 1989.

6.  He was subsequently reduced to PV1/E-1 effective 12 June 1989 and he was confined in the hands of military authorities from 15 June 1989 to 4 July 1989. 

7.  On 22 November 1989, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer (NCO) and making provoking gestures and leaving the area while his NCO was talking to him.  

8.  On 27 November 1989, he executed a Medical Examination for Separation Statement wherein he stated he did not wish to have a separation physical.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains:

	a.  Orders 300-6, issued by Headquarters, 259th Personnel Service Company, Germany, dated 28 December 1989, ordering his reassignment to the Transition Center, Fort Jackson, SC, for separation processing effective 7 January 1990.

	b..  A DD Form 214 that shows he was discharged on 7 January 1990, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b for misconduct – pattern of misconduct in the rank/grade of PV1/E-1 with a general discharge.  He completed 2 years,
4 months, and 16 days of creditable active service.  His DD Form 214 also shows in:

* items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – "PV1" and "E-1"
* item 12h (Effective Date of Pay Grade) – "89  06  15" (15 June 1989)
* item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized (All Periods of Service)) the:

* Army Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar

* item 26 (Separation Code) – "JKM"
* item 28 (Narrative Reason for Separation) – "Misconduct – Pattern of Misconduct"

10.  He provides a copy of the decision by the Board of Veterans Appeals in regard to his appeal with a resulting rating decision of service-connected disability compensation for a psychiatric disorder.

11.  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.  

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge, and is not intended to have any legal effect on termination of a Soldier's service.  It states for:

* items 4a and 4b, enter the active duty rank/grade held at the time of separation
* item 12h, from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade
* item 13, self-explanatory
* item 28, enter the reason for separation based on the regulatory or statutory authority

13.  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 the SPD code JKM is the appropriate code to assign to Soldiers separated under the provisions of 
Army Regulation 635-200, paragraph 14-12b, by reason of misconduct – pattern of misconduct.

14.  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  The Overseas Service Ribbon was established by the Secretary of the Army on 10 April 1981.  Effective 1 August 1981, all members of the Active Army, Army National Guard, and Army Reserve in an active Reserve status are eligible for the award for successful completion of overseas tours.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 7 January 1990 under the provisions of Army Regulation
635-200, paragraph 14-12b for misconduct – pattern of misconduct with a general discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  His record reflects a period of service marred with misconduct and included an arrest for assault and the wrongful damage of private property, a court-martial conviction for wrongfully misappropriating property and breaking restriction, and an NJP punishment for disobeying a lawful order and making provoking gestures and leaving the area while his NCO was talking to him.  Nothing in his record supports his contention that his pattern of misconduct was caused by a mental disease.

4.  With respect to the narrative reason for separation:

	a.  VA disability compensation is a monetary benefit paid to veterans who are disabled by an injury or illness that was incurred or aggravated during active military service.  These disabilities are considered to be service-connected.  "Service-connected disabilities" is not an Army reason for separation.  Regardless, the applicant was discharged for "misconduct" and not for any other reason.

	b.  He declined to take a separation physical.  His separation code and narrative reason for separation were assigned based on the discharge separation authority of Army Regulation 635-200, paragraph 14-12b.  The underlying reason for his discharge was his pattern of misconduct.  Absent his ongoing misconduct, there was no fundamental reason to process him for separation.  The only valid narrative reason for separation permitted under paragraph 14-12b is "misconduct – pattern of misconduct" and the appropriate separation code associated with this discharge is "JKM," which is correctly shown on his DD Form 214.

5.  With respect to his grade, when the applicant was convicted by a court-martial on 15 June 1989, the court sentenced him to reduction to PV1/E-1.  He served in this grade until he was discharged on 7 January 1990.  There is no evidence he was eligible for advancement or advanced to E-4 from the date of his conviction to the date of his discharge.  As such, his rank, grade, and effective date of rank is properly listed on his DD Form 214.

6.  He served in Germany from 7 December 1987 to 12 January 1990 and he was credited with an overseas tour.  He met the eligibility criteria for award of the Overseas Service Ribbon.  Therefore, his DD Form 214 should be corrected to show this award.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding to item 13 of his DD Form 214 the Overseas Service Ribbon.

2.  The Board further determined 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 DD Form 214 to show the narrative reason for his separation as "service-connected disability" instead of "misconduct - pattern of misconduct"
* restoration of his rank/grade from "private (PV1)/E-1" to "specialist four (SP4)/E-4"



      ____________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)                                         AR20120022463



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ABCMR Record of Proceedings (cont)                                         AR20120022463



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