IN THE CASE OF:	   

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140015188 


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 the entry in Item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), from "Misconduct (Serious Offense)" to something more favorable. 

2.  The applicant states he never received an Article 15 or any counseling statements. 

3.  The applicant provides his DD Form 214. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 16 October 2008 and held military occupational specialty 12B (Combat Engineer).  He served in Iraq from 27 March to 3 September 2009.  

2.  He was awarded or authorized the Army Commendation Medal, National Defense Service Medal, Iraq Campaign Medal with campaign star, Army Service Ribbon, Army Service Ribbon, and Driver and Mechanic Badge with Driver-Wheeled Vehicle Clasp. 

3.  On 9 September 2010, by memorandum from the U.S. Army Criminal Investigation Command (CID) to his commander, a CID agent stated during a search of the applicant's privately owned vehicle, evidence unrelated to the offense (failing to obey a lawful order) was discovered.  He previously admitted a bag of spice may be present in his vehicle and a subsequent search revealed an open bag of known brand of spice.  The referenced offense was referred to the commander for his disposition.  He was counseled by his company first sergeant. 

4.  On 4 March 2011, his immediate commander initiated a Bar to Reenlistment Certificate against him citing the charges of larceny of private funds, wire fraud, conspiracy, and larceny of Army Air Force Exchange Services (AAFES) property. He was provided with a copy of this bar but elected not to submit a statement on his own behalf.  The bar was approved by his battalion commander. 

5.  On 13 July 2011, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, commission of a serious offense.  He cited the applicant's wrongful possession of spice paraphernalia.  He recommended an under honorable conditions (general) discharge.

6.  On 14 July 2011, the applicant acknowledged receipt of the commander's intent to separate him.  He subsequently waived consultation with counsel but 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 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.  He elected not to submit a statement on his behalf. 

7.  Subsequent to this acknowledgement, the immediate commander initiated separation action against him under the provisions of paragraph 14-12c of Army Regulation 635-200.  His intermediate commander recommended approval with the applicant's service characterized as general under honorable conditions. 

8.  Consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense) and directed his service be characterized as general under honorable conditions.  Accordingly, the applicant was discharged on 4 August 2011.  

9.  His DD Form 214 confirms he was discharged by reason of misconduct (serious offense) on 4 August 2011 under the provisions of paragraph 14-12c of Army Regulation 635-200 with a character of service of under honorable conditions (general).  This form shows he completed 2 years, 9 months, and 19 days of creditable active service during the period under review.  Additionally, his DD Form 214 shows in:

* item 26 (Separation Code) – "JKQ"
* Item 28 (Narrative Reason for Separation) – "Misconduct (Serious Offense)"

10.  On 7 November 2012, the Army Discharge Review Board (ADRB) reviewed his discharge and determined he was properly and equitably discharged.  As such, the ADRB denied his petition for an upgrade of his discharge.

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, 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 for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such is merited by the Soldier's overall record.

12.  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 – serious offense.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant committed a serious offense in that he wrongfully possessed spice paraphernalia.  Accordingly, 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.  His discharge was appropriate because the quality of his service was not consistent with acceptable personal conduct and performance by Army personnel.  

2.  His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct, commission of a serious offense.  Absent the misconduct of committing a serious offense 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, serious offense" and the appropriate separation code associated with this discharge is "JKQ" which is correctly shown on his DD Form 214.

3.  His narrative reason for separation is correct.  He is not entitled to correction of his narrative reason for separation.

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)                                         AR20140015188



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ABCMR Record of Proceedings (cont)                                         AR20140015188



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