IN THE CASE OF:	  

		BOARD DATE:	    17 October 2013

		DOCKET NUMBER:  AR20130003537 


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, in effect, correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show something other than "misconduct."

2.  The applicant states, in effect:

	a.  He was not informed that men between the ages of 18 and 25 were required to update their mailing address with the Selective Service System within 10 days each time they moved.  He does not believe that his recruiter bothered to update his address before he entered the Army.

	b.  While he was at Fort Stewart, GA, he had an unpaid student loan that was in military deferment status and it may have hidden, or subtracted from, his education level and military rank.  As a consequence, he thinks these factors may have caused him to have misconduct-like patterns while he was serving on active duty.

	c.  He thinks the reason for his discharge should be dismissed or upgraded because witnesses in his unit at Fort Stewart, GA, falsified or misrepresented some facts.  He had never owned a gun and he doesn't condone owning one.  He was in a disagreement with noncommissioned officers (NCO) during a non-ammunition training mission that day and he did not yell.  He believes the narrative reason for his discharge is still on the minds of Americans and should be dismissed to give him and his “military genetics” a fair chance in life.

3.  The applicant provides his DD Form 214 and a page titled My Student Data Download.

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 14 May 1993 and he held military occupational specialty 11M (Fighting Vehicle Infantryman).  On 27 September 1993, he was assigned to the 2nd Battalion, 7th Infantry Regiment, Fort Stewart, GA.

3.  Between 18 October 1993 and 1 June 1994, he was counseled by various members of his chain of command on numerous occasions for losing government equipment on several occasions, being absent from formation during a division alert, failure to report to his appointed place of duty on several occasions, poor personal hygiene, and disobeying lawful orders on two separate occasions.

4.  On 16 March 1994, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for two specifications of disobeying a lawful order, two specifications of being disrespectful toward NCOs, and one specification of wrongfully communicating a threat to an NCO.

5.  On 19 May 1994, he underwent a mental status evaluation.  The examining psychologist stated he (the applicant) acknowledged the importance of meeting Army standards but wanted to keep his strong personal values which were in conflict with Army standards.  The applicant had stated he was aware that his doing so it could result in administrative action being taking against him.  The psychologist further stated he appeared unmotivated to make any changes in his behavior and she psychiatrically cleared him for any administrative action deemed appropriate by the command.

6.  On 30 June 1994, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct - patterns of misconduct.  Specifically, he cited the applicant's failures to report and losing/misplacing government property and stated he was recommending he receive a general discharge.

7.  On 30 June 1994, he consulted with legal counsel and he was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights available to him.  He declined to submit a statement in his own behalf. 

8.  On 15 July 1994, the separation authority approved the applicant's discharge action and directed the issuance of a General Discharge Certificate.  On 26 July 1994, he was discharged accordingly.

9.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b with an under honorable conditions characterization of service.  Item 26 (Separation Code) of his DD Form 214 contains the entry "JKA" and item 28 contains the entry "misconduct."

10.  On 26 November 2008, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined that both the reason for his discharge and the characterization of his service were proper and equitable.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, in effect at the time, established policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  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 was merited by the Soldier's overall record.

12.  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 SPD code of JKA is the correct code for Soldiers separating under Army Regulation 635-200, paragraph 14-12b and "misconduct" is the corresponding entry for the narrative reason for separation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, paragraph 14-12b.  This is the only valid narrative reason for separation permitted under that paragraph.  His narrative reason for separation is correctly shown on his DD Form 214.  

2.  The applicant provides no convincing argument as to why failing to update his mailing address with the Selective Service System or having an unpaid student loan would cause the misconduct that led to his discharge.

3.  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)                                         AR20130003537





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ABCMR Record of Proceedings (cont)                                         AR20130003537



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