IN THE CASE OF:
BOARD DATE: 2 April 2015
DOCKET NUMBER: AR20140015036
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 separation code shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.
2. The applicant states he has been unable to get an explanation of what the separation code means. He doesn't know if any evidence still exists for the exact incident, but he was not present at all. He was falsely accused. There were witnesses on his behalf, but they refused to cooperate with his defense. The code listed on his DD Form 214 is preventing some desired employment.
3. The applicant did not provide any supporting 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 applicants 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 applicants 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 6 February 1991. He held military occupational specialty 92G (Food Service Specialist).
3. On 31 August 1995, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully using marijuana between 9 July and 16 July 1995.
4. In an undated memorandum, his commander notified the applicant that he was being considered for elimination from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), paragraph 14-12c commission of a serious offense. The commander cited the
31 August 1995 NJP. The commander further indicated the applicant had been counseled on numerous occasions to encourage rehabilitation and the applicant had been referred to Alcohol and Drug Abuse Prevention and Control Program counseling. The commander recommended the applicant receive an under other than honorable conditions characterization of service.
5. The applicant acknowledged receipt of the separation notification action and consulted with counsel. He requested consideration of his case by an administrative separation board and a personal appearance before that board. He indicated he would not submit a statement on his own behalf.
6. His battalion commander recommended approval of the separation with service characterized as general, under honorable conditions.
7. On 8 January 1996, the separation authority approved the separation and directed a general discharge.
8. On 25 January 1996, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct with his service characterized as under honorable conditions (general). He had completed 4 years, 11 months, and 20 days of creditable active duty service. Item 26 (Separation Code) shows the entry "JKQ."
9. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, states that SPD codes are three-character alphabetic combinations which identify reasons for, and types of, separation from active duty. The sole purpose of SPD codes is to provide statistical accounting for reasons for separation. The SPD code of "JKQ" is the correct code for Soldiers separated under AR 635-200, paragraph 14-12c, for misconduct.
10. AR 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 commission of a serious offense. A serious offense is one which warrants separation and for which the individual could receive a punitive discharge at a trial by court-martial. 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 Soldiers overall record.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his separation code should be changed. He has been unable to get an explanation as to what it means and it is preventing some desired employment.
2. The evidence of record shows the applicant had committed a serious offense. Accordingly, his commander initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.
The SPD code entered on his DD Form 214 is consistent with the reason and authority for separation.
3. In view of the foregoing, there is an insufficient evidentiary 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) AR20100022411
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