IN THE CASE OF:	   

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130011840 


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 under honorable conditions (general) discharge
* removal of the narrative reason for his separation 
* reinstatement of his rank/grade

2.  The applicant states he believes he was wrongfully chaptered out of the military.  He was young and had no knowledge of how to fight back or dispute the allegations.  His military records show no misconduct to chapter him out.  

3.  The applicant does not provide any evidence. 

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 in October 1965 and enlisted in the Regular Army at 18 years and 3 months of age on 11 January 1984.  He completed basic combat and advanced individual training and he was awarded military occupational specialties 11B (Infantryman) and 71M (Chaplain Assistant). 

3.  He served in Hawaii from on or about 26 April 1984 to on or about 20 February 1987.  He was awarded or authorized the Army Service Ribbon, Air Assault Badge, Sharpshooter Marksmanship Qualification Badge with Rifle and Grenade Bars, Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Overseas Service Ribbon, and Army Achievement Medal (1st Oak Leaf Cluster). 

4.  He was promoted through the ranks to specialist four (SP4)/E-4 on 1 March 1985.  He was also appointed to the rank of corporal (CPL)/E-4 on 8 August 1988. 

5.  His records show he was frequently counseled by members of his chain of command for various infractions, including: 

* failing to be at his appointed place of duty
* failing to attend Family Support Group meeting
* failing to complete his prescribed duties (Chapel Day Duty)
* failing to camouflage himself despite being told three times to do so
* failing to display his unit patch on his uniform
* conducting himself in an unprofessional manner
* failing to report to work as scheduled
* failing to be present at a religious support covering a wedding
* failing to pay just debt to a video store
* failing to follow directives and disobeying orders

6.  On 18 October 1988, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a suspended reduction to private first class (PFC)/E-3, forfeiture of $208.00 pay, and restriction and extra duty.  He elected not to appeal his punishment.  

7.  On or about 5 January 1989, after having willfully disobeyed a lawful order from his commanding officer, the reduction to PFC/E-3, forfeiture of pay, and restriction and extra duty imposed on 18 October 1988 was vacated and ordered executed.  He was reduced to PFC/E-3.

8.  On 12 June 1989, he accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private (PVT)/E-1, forfeiture of pay for 2 months, and restriction and extra duty.  He appealed his punishment but his appeal was denied. 

9.  Subsequent to his continued misconduct, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his misconduct.  The immediate commander stated the applicant had no potential for further military service.  

10.  On 26 July 1989, his immediate commander notified him of his intent to initiate separation action against him in accordance with paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) for misconduct – pattern of misconduct.  He recommended a general discharge.

11.  On 26 July 1989, the applicant acknowledged receipt of the commander's intent to separate him.  He consulted with legal counsel and 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 available to him.  He waived consideration of his case by a separation board and a personal appearance before a separation board.  He also elected not to submit statements on his own behalf.  He indicated he:

* understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* 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 Federal and State laws

12.  On 28 July 1989, the applicant's immediate commander initiated separation action against him in accordance with chapter 14 of Army Regulation 635-200 due to misconduct – pattern of misconduct.  The intermediate commander recommended approval of the discharge.

13.  On 1 August 1989, consistent with the chain of command's recommendations, the separation authority approved the administrative discharge and ordered the applicant discharged under the provisions of paragraph 14-12b of Army Regulation 635-200 by reason of misconduct and directed issuance of a General Discharge Certificate.

14.  The applicant was discharged on 16 August 1989.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged for misconduct - pattern of misconduct under the provisions of chapter 14, Army Regulation 635-200, with his service characterized as under honorable conditions.  This form further confirms he completed 5 years, 7 months, and 6 days of creditable active military service.  Furthermore, this form shows in:

* items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) – "PV1" and "E-1"
* item 12h (Effective Date of Pay Grade) – "89-06-12" (12 June 1989)
* item 26 (Separation Code) – "JKM"
* item 28 (Narrative Reason for Separation) – "Misconduct – Pattern of Misconduct"

15.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

17.  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.

18.  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 28, enter the reason for separation based on the regulatory or statutory authority
19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant displayed a pattern of misconduct as evidenced by his extensive negative counseling, two instances of NJP, and a bar to reenlistment.  As a result, his chain of command initiated separation action against him.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He was accordingly discharged under the provisions of Army Regulation 635-200, chapter 14, due to his misconduct.

2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Considering that the issuance of a discharge under other than honorable conditions is normally appropriate in such cases, his discharge under honorable conditions was highly favorable given all the facts of the case.

3.  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.  Therefore, he is not entitled to an honorable discharge.  

4.  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 - pattern of misconduct.  Absent the pattern of misconduct, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his pattern of misconduct.  The only valid narrative reason for separation permitted under that paragraph is "misconduct – pattern of misconduct" and the appropriate SPD code associated with this discharge is "JKM" which are now correctly shown on his DD Form 214.

5.  With respect to his grade, when the applicant accepted NJP on 18 October 1988, his punishment consisted of a suspended reduction to PFC/E-3.  This suspended punishment was vacated and ordered executed on 5 January 1989.  He was reduced to PFC/E-3.  He then accepted NJP again on 18 June 1989 that resulted in his reduction to PV1/E-1.  He served in this grade until he was discharged on 16 August 1989.  There is no evidence he was promoted to a higher rank/grade between the date of his reduction and the date of his discharge.  As such, his rank, grade, and effective date of rank are properly listed on his DD Form 214 and there is no reason to change any entries.

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)                                         AR20130011840





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ABCMR Record of Proceedings (cont)                                         AR20130011840



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