IN THE CASE OF:	  

		BOARD DATE:	    1 October 2013

		DOCKET NUMBER:  AR20130002764 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Misconduct (Serious Offense)" to something more favorable. 

2.  The applicant states his characterization of service was upgraded to fully honorable but the narrative reason for discharge was not changed. 

3.  The applicant provides his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show enlisted in the Regular Army on 11 October 2001.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman). 

2.  On 3 August 2004, the applicant's urine sample tested positive for cocaine.  

3.  On 14 August 2004, the applicant's driving privileges were suspended after having been stopped for driving under the influence (DUI) and failing to maintain insurance on a motor vehicle.  




4.  On 20 August 2004, the applicant's urine sample also tested positive for cocaine. 

5.  On 13 October 2004, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c by reason of misconduct - commission of a serious offense.  He cited the specific reasons as the applicant's wrongful use of cocaine.  The immediate commander recommended an under other than honorable conditions discharge.  

6.  On 13 October 2004, 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 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 waived consideration of his case by an administrative separation board and personal appearance before an administrative separation board.  He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him and that he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

7.  Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander recommended separation action against him in accordance with chapter 14 of Army Regulation 635-200, for misconduct - commission of a serious offense.  The immediate commander recommended an under other than honorable conditions discharge.

8.  On 4 January 2005, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be characterized as under other than honorable conditions.  Accordingly, the applicant was discharged on 13 January 2005.

9.  He was discharged under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under other than honorable conditions by reason of misconduct.  He completed 3 years, 3 months, and 
3 days of creditable active service.  Item 24 (Character of Service) showed his service was characterized as "Under Other Than Honorable Conditions,"
Item 26 (Separation Code) showed a code of "JKK," Item 27 (Reentry Code) showed a code of "4," and Item 28 showed his narrative reason for separation as "Misconduct."
10.  On 23 July 2012, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was improperly discharged.  Accordingly, the ADRB voted to change his characterization of service to fully honorable. Additionally, the ADRB voted to correct:

* Item 25 to show the separation authority as paragraph 14-12c of Army Regulation 635-200
* Item 26 to show the Separation Code as "JKQ"
* Item 27 to show the Reentry Code as "3"
* Item 28 to show the narrative reason for separation as "Misconduct (Serious Offense)"

11.  The applicant's DD Form 214 was voided.  He was issued a new DD Form 214 to show an honorable characterization of service with the following entries:

* Item 25 - Paragraph 14-12c of Army Regulation 635-200
* Item 26 - JKQ
* Item 27 - 3
* Item 28 - Misconduct (Serious Offense)

12.  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 included 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 an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct.

13.  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.  The "JKQ" SPD code is the correct code for Soldiers separating under paragraph 14-12c of Army Regulation 635-200 by reason of misconduct - serious offense. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms the applicant committed multiple serious offenses including the use of illegal drugs and one instance of a DUI.  Accordingly, his chain of command initiated separation action against him.  The separation authority approved the recommendation for discharge and he was ultimately discharged under Army Regulation 635-200, chapter 14, with an under other than honorable conditions discharge.

2.  The evidence of record shows his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  

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

4.  Although the ADRB determined his discharge was improperly processed and voted to change the characterization of his service to honorable, this did not change the fact that he committed a serious offense and the commission of his serious offense was the reason for his discharge.  The applicant's misconduct diminished the quality of his service; therefore, his narrative reason for discharge is appropriate based on the available evidence.

5.  Based on the foregoing evidence, the applicant 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)                                         AR20130002764



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ABCMR Record of Proceedings (cont)                                         AR20130002764



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