IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003317 


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 the narrative reason for separation listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from "Misconduct" to "Inability to Adapt."

2.  He states he was young and foolish when he entered the military and he did not realize the future severity of his actions.  He maintains he was told by a senior noncommissioned officer (NCO) that the Army was no place for him and things would get worse for him if he did not leave.  Therefore, he asked for a chapter discharge not knowing which chapter he would receive since he was told he would still receive his benefits. 

3.  He does not provide any additional 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 17 April 1996 at the age of 
19 years and 6 months.

3.  His record shows that between 21 August 1996 and 13 March 1997 he received eight negative counseling statements.  The counseling statements were for the following infractions:

* Disobeying an NCO's instructions
* Late for formation and/or unsatisfactory performance
* Disrespect to a senior NCO
* Making a threat "jest or otherwise" not to return from leave once given
* Being arrested for underage drinking, destruction of private property, drunk and disorderly conduct, and resisting apprehension

4.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, on:

* 16 December 1996 for being disrespectful to a senior NCO on
   16 December 1996 
* 1 April 1997 for failure to go at the time prescribed to his appointed place of duty on 13 March 1997

5.  On 7 July 1997, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, patterns of misconduct.  Specifically, he cited the applicant's behavior of underage drinking, drunk and disorderly conduct, resisting apprehension, and wrongful damage to private property as the basis for the separation action.  On an unknown date, he acknowledged receipt of the letter of notification. 

6.  On 11 July 1997, the applicant signed the memorandum, Subject:  Separation Under Army Regulation 635-200, Chapter 14-12b, Commission of a Serious Offense, and initialed each of the following paragraphs as stated below:

   a.  I have been advised by my consulting counsel of the basis for the contemplated action to separate me for commission of a serious offense under Army Regulation 635-200, chapter 14-12b, and its effect; of the rights available to me; and the effect of any action taken by me in waving my rights.
   
   b.  Statements in my own behalf (are) (are not) submitted herewith.  (He did not choose the one that applied, but his record is void of any attached statements.) 
   
   c.  I understand that I am not entitled to an administrative separation board.
   
   d.  I understand that I may expect to encounter substantial prejudice in civilian life if a general discharge under honorable condition is issued to me.  I further understand that, as a result of issuance of a discharge under other than honorable condition, I may be ineligible for many of all the benefits as a veteran under both Federal and State laws and that I may expect to encounter substantial prejudice in civilian life.  I understand that if I receive a discharge/character of service which is less than honorable, I may make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, I realize that an act of consideration by either board does not imply that my discharge will be upgraded.
   
   e.  I further understand that I will be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.  
   
   f.  I have retained a copy of this statement.

7.  On 15 July 1997, the battalion commander recommended approval of the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12b and recommended he be issued a General Discharge.

8.  On 21 July 1997, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, and the issuance of an Under Honorable Conditions Discharge (General) Certificate.

9.  On 19 August 1997, he was discharged.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 4 months, and 3 days of total active service.  It also shows in:

* Item 24 (Character of Service) Honorable
* Item 25 (Separation Authority) Army Regulation 635-200 paragraph 14-12b
* Item 26 (Separation Code) "JKA"
* Item 28 (Narrative Reason for Separation) Misconduct

10.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.  There is also no evidence to show that his discharge was upgraded from general to honorable.

11.  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 abuse of illegal drugs.  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.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  This regulation provides that the SPD code of JKA applies to persons discharged under Army Regulation 635-200, paragraph 14-12b, pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the narrative reason for his discharge should be changed to "Inability to Adapt" versus misconduct because he was young and foolish and did not know which type of discharge he would receive. 

2.  The records show he was 19 years and 6 months of age at the time of his enlistment and 20 years and 10 months of age at the time of his misconduct.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  Additionally, the evidence of record shows he acknowledged receipt of the letter of notification and on 11  July 1997, he signed and initialed a separation memorandum acknowledging that he was advised by his consulting counsel of the basis for his separation.  Therefore, his argument that he was unaware of the type of discharge he would receive is not supported by the available evidence. 

4.  The evidence of record further shows the applicant was discharged under Army Regulation 635-200, paragraph 14-12b, pattern of misconduct.  The commander listed his behavior of underage drinking, drunk and disorderly conduct, resisting apprehension, and wrongful damage to private property as the basis for the separation action.  As such, the narrative reason for separation as listed on his DD Form 214 is correct as constituted.

5.  Although it appears an administrative error was made in the issuance of his DD Form 214 that indicates he received an honorable discharge instead of a general discharge, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to correct his character of service.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140003317





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ABCMR Record of Proceedings (cont)                                         AR20140003317



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