IN THE CASE OF:	   

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140012845 


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 other than honorable conditions discharge to an under honorable conditions (general) discharge.

2.  The applicant states he made some mistakes at age 18 and he does not want that to affect him the rest of his life.  He may want to rejoin the military one day. 

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 July 1986 and enlisted in the Regular Army at nearly 18 years of age on 8 April 2004.  He held military occupational specialty 94B (Multiple Launch Rocket System Repairer) and he was assigned to the 19th Maintenance Battalion, 214th Field Artillery Brigade, Fort Sill, OK.

3.  He was awarded or authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon.

4.  On 25 August 2005, at 19 years of age, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using D-amphetamine, wrongfully using amphetamine, and wrongfully using methamphetamine.  He was reduced to pay grade E-2. 

5.  On 2 November 2005, at 19 years and 4 months of age, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty, stealing money from his unit, and leaving his appointed place of duty without authority.  He was reduced to pay grade E-1. 

6.  On 31 January 2006, at 19 years and 6 months of age, he accepted NJP under the provisions of Article 15 of the UCMJ for leaving his appointed place of duty without authority, dereliction in the performance of his duties, making a false official statement with the intent to deceive, and signing a false official statement also with the intent to deceive. 

7.  On 22 February 2006, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - commission of a serious offense.  The specific reasons are cited as the wrongful use of amphetamine, methamphetamine, and D-methamphetamine, in addition to multiple failures to report, stealing money, underage drinking, dereliction of duty, and making false statements.  The commander recommended the issuance of an under other than honorable conditions discharge. 

8.  On 28 February 2006, the applicant acknowledged receipt of the commander's intent to separate him.  He 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, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board contingent upon receiving a characterization of service of no less than an under honorable conditions (general).  He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

	c.  If the separation authority refused to accept his conditional waiver of a hearing before an administrative separation board, he requested a personal appearance before a board and representation by counsel.

9.  He submitted a statement wherein he acknowledged his errors and apologized to the Soldiers in his unit, his family, and his friends.  He requested the separation authority disapprove the recommendation for his separation action. 

10.  On 1 March 2006, and subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct.  

11.  On 6 March and 6 April 2006, his intermediate and senior commanders recommended his discharge with the issuance of an under other than honorable conditions discharge.

13.  On 13 April 2006, the separation authority (a major general) disapproved the conditional waiver and ordered the applicant's case be referred to an administrative separation board.

14.  On 4 May 2006, the applicant again acknowledged receipt of the commander's intent to separate him.  He 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, and of the procedures/rights that were available to him.  He waived consideration of his case by a separation board and/or a personal appearance before a separation board.  He acknowledged he understood that:

	a.  He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

	b.  He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge.

15.  He submitted another statement wherein he acknowledged his errors and apologized to the Soldiers in his unit, his family, and his friends.  He requested the separation authority disapprove the recommendation for his separation action. 

16.  On 9 May 2006, a Judge Advocate General attorney reviewed the separation action and found it legally sufficient. 

17.  On 12 May 2006, 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 with an under honorable conditions characterization of service.   

18.  On 24 May 2006, the applicant was accordingly discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an under honorable conditions characterization of service.  He completed 2 years, 1 month, and 17 days of net active service this period.  The DD Form 214 listed the narrative reason for separation as "Misconduct-Drug Abuse" and the separation code as "JKK." 

19.  On 5 May 2010, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and/or change in the reason for his discharge.  On 27 January 2011, after careful review of his application, military records, and all other available evidence, the ADRB determined he was properly and equitably discharged.  As a result, the ADRB unanimously denied his petition for an upgrade of his discharge.  However, the ADRB noted the administrative error in the narrative reason for separation and the separation code. 

20.  On 1 May 2011, his original DD Form 214 was voided and he was reissued a new DD Form 214 that shows the separation code of "JKQ" and the narrative reason for separation as "Misconduct-Serious Offense." 

21.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

22.  Army Regulation 635-5-1 (Separation Program Designator (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 the SPD code of JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed serious offenses that included the abuse of drugs, theft, making false official statements, failure to report, and dereliction of duty.  As such, his chain of command initiated separation action against him.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant was 18 years of age at the time of enlistment and between
19 and 20 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

3.  His discharge appears to be appropriate based on the quality of his service.  His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  His actions at the time clearly brought discredit upon himself and the Army.  Based on his record of misconduct, his service was unsatisfactory.  Therefore, he is not entitled to a general 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)                                         AR20140012845



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ABCMR Record of Proceedings (cont)                                         AR20140012845



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