IN THE CASE OF:	   

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012462 


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.  He also requests correction of the narrative reason for separation from misconduct-commission of serious offense to something more favorable.

2.  The applicant states he believes the record is unjust because he was charged with driving under the influence (DUI) in a civilian court and he was convicted for reckless driving.  The provisions of the Uniform Code of Military Justice did not support him being separated and the traffic ticket he received did not constitute a serious offense.  The court document provided with his application shows he was convicted of reckless driving.  Additionally, it should be noted that he was told that after the separation paperwork was started, it could not be rescinded.  He was then reassigned to another unit while his unit was relocated to Fort Lewis, WA.  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 638 (Recommendation for Award)
* Notice to Appear in Court
* Intoxication Interrogation Report
* Arrest Investigation Report
* Arresting Officer's Statement 
* Civilian Record of Trial 


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 25 June 1991 and he held military occupational specialty 91B (Medical Specialist).  He served in Korea from December 1991 to December 1992. 

3.  He was awarded or authorized the Army Service Ribbon, National Defense Service Medal, Overseas Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, Expert Marksmanship Qualification Badge with Grenade Bar, and Army Achievement Medal. 

4.  He was assigned to 3rd Battalion, 27th Infantry Regiment, 7th Infantry Division (Light), Fort Ord, CA. 

5.  On 26 March 1993, the applicant was arrested for DUI by the Marina Department of Public Safety.  

6.  On 27 March 1993, his commanding officer suspended his privileges to possess and consume alcohol, pass privileges, and on-post driving privileges.  He had been identified as unable to handle alcoholic beverages in a mature manner and his consumption had had an adverse impact on the performance of his duties. 

7.  On 14 May 1993, at a pre-trial conference, the applicant pled guilty to the misdemeanor charge related to consumption of alcohol.  He agreed to be placed on conditional probation for 3 years.   

8.  On 27 May 1993, the garrison commander ordered the applicant's driving privileges revoked as a result of the applicant's conviction. 

9.  On 11 June 1993, the Assistant Division Commander, 7th Infantry Division reprimanded the applicant for the DUI, arrest, and irresponsible conduct which brought discredit to him and raised doubts about his fitness for future military service. 

10.  On 21 June 1993, after his commander received a Dishonored Check Notification, he counseled the applicant for writing bad checks. 

11.  On 19 August 1993, the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commission of a serious offense, citing his arrest by civilian police for driving under the influence.  He recommended a general discharge under honorable conditions.

12.  In connection with this separation action, the applicant underwent a mental status evaluation at the Community Mental Health Service, Fort Ord.  The results indicated the applicant had the mental capacity to understand and participate in [chapter] proceedings, was mentally responsible, met retention standards of Army Regulation 40-501 (Standards of Medical Fitness), and was cleared for administrative actions. 

13.  On 19 August 1993, 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, the possible effects of this discharge, and the procedures and rights available to him.  He waived consideration of his case by an administrative separation board.  He also elected to submit a statement on his own behalf, but failed to do so.  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 and he could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

14.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200.  The immediate commander opined that further rehabilitation was not feasible because that would create serious disciplinary problems or hazards to the military mission and/or to the Soldier.  His intermediate commander recommended approval with the applicant's service characterized as general under honorable conditions. 


15.  Consistent with the chain of command's recommendations and subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct-commission of a serious offense and directed his service be characterized as under honorable conditions (general).  Accordingly, the applicant was discharged on 28 September 1993.

16.  His DD Form 214 confirms he was discharged by reason of misconduct-commission of a serious offense in pay grade E-3 on 28 September 1993 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions.  This form shows he completed 2 years, 3 months, and 4 days of creditable active service.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) –"JKQ"
* Item 28 (Narrative Reason for Separation) – "Misconduct-commission of a serious offense"

17.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

18.  He provides his civilian Record of Trial with multiple paragraphs highlighted, indicating he was convicted for reckless driving. 

19.  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, 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 under this chapter; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

20.  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.

21.  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.  SPD code "JKQ" is the correct code for Soldiers separating under the provisions of paragraph 14-12c of Army Regulation 635-200 by reason of misconduct – commission of a serious offense. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he was arrested by civilian police for driving under the influence of alcohol. Accordingly, his chain of command initiated separation action against him.

2.  The evidence of record further shows the applicant's 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Contrary to his belief that the military justice system did not apply in his case because his offense was a civilian offense, the quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  

4.  Based on his record of indiscipline, his service for the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge to fully honorable.

5.  The applicant's narrative reason for separation was assigned based on the fact that he was separated under the provisions of chapter 14 of Army Regulation 635-200 for misconduct-commission of a serious offense.  Absent the police arrest for driving under the influence, there was no fundamental reason to process him for separation.  The underlying reason for his discharge was his commission of a serious offense.  The only valid narrative reason for separation permitted under that paragraph is "misconduct-commission of a serious offense" and the appropriate separation code associated with this discharge is "JKQ," which is correctly shown on his DD Form 214.

6.  After a comprehensive review of his case, it is clear he received the appropriate characterization of service and the appropriate narrative reason for separation.  He has shown neither an error nor an injustice and provides no evidence to support his contentions.  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)                                         AR20140012462



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ABCMR Record of Proceedings (cont)                                         AR20140012462



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