BOARD DATE:	  17 June 2014

		DOCKET NUMBER:  AR20130016881 


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:

	a.  an upgrade of his general discharge to honorable; and

	b.  his narrative reason for separation be changed.

2.  The applicant states:

* he is attempting to join the National Guard or Reserves
* if his discharge and narrative reason for separation are modified he will once again be able to serve
* the recruiters told him, the way things are, there is nothing they can do for him to reenlist even with a waiver 

3.  The applicant provides no additional documentary 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 enlisted in the Regular Army on 18 June 1997.  He completed his training and was awarded military occupational specialty 63B (light wheel vehicle mechanic).  On 24 August 1999, he was honorably discharged for immediate reenlistment.  He reenlisted on 25 August 1999 for a period of 
5 years. 

3.  On 20 November 2001, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 17 October 2001 to 19 October 2001.

4.  On 23 January 2002, NJP was imposed against him for failing to go to his appointed place of duty (two specifications) and failing to obey a lawful order.

5.  He was counseled for:

* not being at his appointed place of duty
* lying to three noncommissioned officers (NCOs)
* disobeying an order from three NCOs
* committing adultery
* failing to obey a lawful order

6.  On 15 April 2002, the applicant was notified of his pending separation for patterns of misconduct under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b.  The unit commander cited the applicant's adverse counseling statements and two instances of NJP.

7.  He consulted with counsel, waived his rights, including his right to a board, and acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued.  He also submitted a statement in his own behalf.  In summary, he stated:

* he had 4 years of honorable service
* he was stationed in two different locations
* he earned his Drivers and Mechanics Badges at Fort Stewart and was awarded the Army Achievement Medal
* in August 1999, he reenlisted to be sent to Fort Eustis where he earned the Army Good Conduct Medal, he took correspondence courses and he was on the promotion list
* he decided to remove himself from the promotion list to pursue becoming an Army diver
* at that time he came down on orders to Korea and he could not go to divers school
* he has no excuses for his actions and he is sorry
* he would like an honorable discharge so he can receive the Montgomery GI Bill   

8.  On 3 May 2002, the separation authority approved the recommendation for discharge for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed the issuance of a general discharge.

9.  On 18 June 2002, he was discharged accordingly.  He completed 4 years, 11 months, and 27 days of creditable active service with 4 days of lost time.

10.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the following pertinent information:

* item 25 (Separation Authority) – Army Regulation 635-200, 
paragraph 14-12b
* item 26 (Separation Code) – JKA
* item 28 (Narrative Reason for Separation) – Misconduct

11.  On 17 November 2006, the Army Discharge Review Board denied his request for an honorable discharge.

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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is 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.




13.  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.

14.  Army Regulation 635-5-1 (Separation Program Designator Codes (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD code to be used for these stated reasons.  The regulation states the reason for a discharge based on an SPD code of "JKA" is "Misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's narrative reason for separation is correct and was applied in accordance with regulatory guidance.  Therefore, there is no basis for granting the applicant's request to change his reason for discharge.

2.  His record of service during his last enlistment included two instances of NJP and 4 days of lost time.  As a result, this record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  In view of the foregoing, there is no basis for granting the applicant an honorable discharge.

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)                                         AR20130016881





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130016881



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1