IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140014364 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the narrative reason for his discharge and to have his general, under honorable conditions discharge upgraded to honorable.

2.  The applicant states, in effect, that his narrative reason for discharge, as well as the characterization of his discharge, is without doubt inequitable, because they were based on false facts, accusations, and assumptions.  His military record shows conduct of a Soldier striving to be all he could be with numerous achievements which included promotions, awards, and completion of Airborne training.  His service was honorable and he did not incur any felonies nor was he guilty of breaking any civilian/military law while serving in the United States Army.

3.  The applicant provides no additional documentation. 

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 11 April 2007 and completed training as a Field Artillery Tactical Data System Specialist while assigned to Fort Bragg, NC.  The highest rank/grade he attained during his period of service was private first class (PFC)/ E-3.

3.  His record contains three negative counseling statements for committing the following offenses:

* failing to properly secure sensitive items (M-16 rifles)
* missing accountability formation
* failing to obey a lawful order from a noncommissioned officer  (NCO) and missing accountability formation

4.  His disciplinary history also includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for:

* missing accountability formation and for locking M-16 rifles in the mail room (Summarized Article 15)
* missing accountability formation 

5.  On 17 September 2008, the applicant's company commander informed him he was initiating action to separate him for a pattern of misconduct with a general discharge under honorable conditions under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b.  The reasons cited were his acceptance of NJP on two occasions and his pending civil charges for brandishing a fire arm and statutory rape.

6.  On the same day, he acknowledged receipt of notification of the basis for the contemplated action to separate him and of the rights available to him, including his right to consult with counsel prior to submitting his election of rights.

7.  On 18 September 2008, after consulting with counsel, he elected not to submit statements in his own behalf.

8.  On 29 September 2008, the separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 14-12b, and that he be furnished a general under honorable conditions characterization of service.
9.  On 16 October 2008, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows:

* his service was characterized as under honorable conditions (general)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with an SPD code of JKA and an RE code of 3
* his narrative reason for separation was "pattern of misconduct"

10.  On 25 August 2014, the Army Discharge Review Board denied the applicant's request for a change in the character of and/or reason for his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 that could result in a punitive discharge, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKA was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14, pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his general under honorable conditions discharge.
2.  The evidence of record shows the applicant accepted NJP on two occasions and was pending civil charges for brandishing a weapon and statutory rape.  He was discharged under the provisions of Army Regulation 635-200, paragraph 
14-12b, which required "pattern of misconduct" as the narrative reason for separation on his DD Form 214.

3.  Considering all the facts in this case, his general discharge was appropriate.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The available evidence is an insufficient basis upon which to grant the requested relief.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20140014364



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ABCMR Record of Proceedings (cont)                                         AR20140014364



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