IN THE CASE OF:	   

		BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130019805 


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 general discharge under honorable conditions and correction of the narrative reason for separation from misconduct to relief from active duty.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident during a 17-year career with no other derogatory actions.  He was a distinguished graduate during many courses and he was a member of the Sergeant Audie Murphy Club.  He was a mentor to many enlisted Soldiers and officers.  Although he received many counseling statements, he disputes such statements and contends he always presented a positive attitude.

3.  The applicant provides:

* reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 15 May 2001
* college transcripts
* DA Form 2-1 (Personnel Qualification Record – Part II)
* multiple diplomas and training certificates
* multiple award certificates and orders
* multiple noncommissioned officer (NCO) evaluation reports

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 enlisted in the Regular Army on 19 May 1988 after having prior active enlisted service.  He held military occupational specialties 63H (Track Vehicle Repairer) and 11B (Infantryman).  He served through multiple reenlistments in a variety of stateside and overseas assignments.  He also completed multiple training courses and several college courses.

3.  He was promoted to sergeant first class/E-7 on 1 February 1996 and to master sergeant (MSG)/E-8 on 1 March 2000.  His promotion orders stated, in part, "the Secretary of the Army has reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence…in view of these qualities..."

4.  His records contain an extensive history of negative counseling by members of his chain of command for:

* failing to report for duty for an alert
* fraternizing and being drunk on duty 
* failing to report to formation
* abusing alcohol
* telling his chain of command lies
* failing to obey a direct order
* demonstrating inconsistent and unreliable duty performance
* being habitually late to work
* demonstrating incompetency and inconsistency in assigned job
* being an alcohol and drug rehabilitation failure

5.  On 3 December 2000, he was apprehended by the military police (MP) at Fort Hood, TX, for driving while intoxicated.  He was transported to the MP station, processed, and released to his unit.

6.  On 7 December 2000, Headquarters, III Corps and Fort Hood, suspended his driving privileges for 1 year.

7.  On 8 December 2000, he was issued a general officer memorandum of reprimand by the Commanding General, 13th Corps Support Command (COSCOM), Fort Hood, TX, for driving while intoxicated.

8.  On 12 February 2001, the applicant's immediate commander notified him of her intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense.  The immediate commander cited the specific reasons as the applicant's failure to report to duty, fraternization, being drunk on duty, lying to a commissioned officer, unsatisfactory work performance, failing to obey an order, poor improvement during drug and alcohol rehabilitation, and being arrested for driving while intoxicated.  The immediate commander recommended his discharge under other than honorable conditions.

9.  On 12 February 2001, 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, the rights available to him, and the effect of any action taken by him in waiving his rights.  He requested consideration of his case by an administrative separation board and a personal appearance before an administrative separation board.  However, he elected not to submit a statement on his own behalf.  He further indicated:

* he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him
* he understood he could be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of a discharge under other than honorable conditions

10.  Subsequent to the applicant's acknowledgement and consultation with counsel, his immediate commander recommended separation action against him under the provisions of Army Regulation 635-200, chapter 14, for misconduct – commission of a serious offense.

11.  On 12 February 2001, the applicant's intermediate and senior commanders recommended his discharge with his service characterized as under other than honorable conditions.

12.  On 23 February 2001, the CG, 13th COSCOM, directed convening of an administrative separation board to consider whether the applicant should be separated.  The applicant was formally advised.

13.  On 5 April 2001, the applicant submitted a request for waiver wherein he waived his right to an administrative separation board and appearance before an administrative separation board.

14.  On 10 April 2001, the separation authority (CG, III Corps and Fort Hood) 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 characterization of his service as under other than honorable conditions.  He ordered the applicant reduced to the lowest enlisted grade.

15.  The applicant was discharged accordingly on 15 May 2001.  His DD Form 214 shows he was discharged by reason of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12c, with his service characterized as under other than honorable conditions.  He completed 15 years, 10 months, and 7 days of total creditable active service and he accrued lost time from 27 March 2001 to 15 May 2001.

16.  His DD Form 214 shows he was awarded or authorized the:

* Meritorious Service Medal (2nd Award)
* Army Commendation Medal (3rd Award)
* Army Achievement Medal (4th Award)
* Army Good Conduct Medal (4th Award) 
* National Defense Service Medal
* NCO Professional Development Ribbon with Numeral 3
* Army Service Ribbon
* Overseas Service Ribbon (2nd Award)
* Expert Marksmanship Qualification Badge with Rifle and Grenade Bars
* Driver and Mechanic Badge with Mechanic Bar
* Drill Sergeant Badge

17.  His DD Form 214 further shows in:

* item 24 (Character of Service) – Under Other Than Honorable Conditions
* item 25 (Separation Authority) – Army Regulation 635-200, paragraph 
14-12c
* item 26 (Separation Code) – JKQ
* 
item 27 (Reentry Code) – 3
* item 28 (Narrative Reason for Separation) – Misconduct

18.  On 22 April 2008 after a personal appearance, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge and determined he was properly discharged.  However, given his length of service and past accomplishments, the ADRB determined his discharge was inequitable.  Accordingly, the ADRB voted to change his character of service to general under honorable conditions.  The ADRB also voted to restore his rank/grade to 
MSG/E-8, but determined the reason for his discharge was proper and equitable and voted not to change it.

19.  The applicant's DD Form 214 was voided.  He was issued a new DD Form 214 to show a character of service of under honorable conditions (general).

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

21.  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.

22.  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 JKQ 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 driving while intoxicated.  Accordingly, his chain of command initiated separation action against him.  His rights were fully protected and he was afforded the opportunity to have his case considered by an administrative separation board.  He waived this right.  The separation authority approved the recommendation for discharge and he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 14.

2.  The applicant had been promoted to MSG, a position of authority and responsibility.  In promoting the applicant to that grade, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence. 
As an MSG, the applicant was in a position of trust and responsibility and he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence.  Not only did he commit a serious offense in driving while intoxicated, his records contain an extensive history of negative counseling for infractions that are generally committed by much junior Soldiers.

3.  His discharge was appropriate because the quality of his service 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.  Therefore, he is not entitled to an upgrade of his discharge.

4.  His narrative reason for separation was assigned based on his discharge due to misconduct for the commission of a serious offense.  Absent the serious offense, there was no fundamental reason to process him for discharge.  The only valid narrative reason for separation permitted under Army Regulation 
635-200, paragraph 14-12c, is "misconduct – serious offense" and the appropriate SPD code associated with this reason is JKQ.

5.  Although the ADRB determined his discharge was properly processed but inequitable and voted to change the character of his service to general under honorable conditions, this did not change the fact that he committed a serious offense and the commission of this 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.  He is not entitled to any 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 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)                                         AR20130019805



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ABCMR Record of Proceedings (cont)                                         AR20130019805



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