BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140016725 


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 under honorable conditions discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable narrative reason for separation than "Pattern of Misconduct."

2.  The applicant states that he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(b) (Patterns of Misconduct).  He states that he did not engage in patterns of misconduct and contends that aside from one incident of receiving nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), he had no other infractions either before or subsequent to that incident.  He had no additional NJP or even an adverse counseling statement.

3.  The applicant further states that his file is not reflective of a Soldier that could [not] be rehabilitated as the regulation states; he had significant time to show that he could be rehabilitated because he was separated 6 months after the incident.
He was not provided an opportunity to challenge the separation.  Once he returned from emergency leave, he was processed out of the Army in less than a day.  He concludes that he was separated due to personality conflicts and not performance and it was done with no regard to due process.  His National Guard Bureau (NGB) Form 22 (NGB - Report of Separation and Record of Service) was produced approximately a year after the fact and back dated to the date on his DD Form 214 and the forms indicate that he had two different ranks.  This injustice has had an adverse impact on his opportunities following his military service.
4.  Although the applicant indicates that he provided letters from senior noncommissioned officers (NCOs) in support of his behavior and subsequent service, there were none enclosed with his application.

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 Maryland Army National Guard (MDARNG) on 19 October 2004.

3.  He was ordered to active duty in support of Contingency Operation Enduring Freedom with duty at Guantanamo Bay, Cuba for a period not to exceed 490 days with a report date of 5 January 2006.

4.  The applicant's record contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) which shows his acceptance of NJP on 2 May 2006 for: violating Article 91, UCMJ by:

	a.  violating Article 91, UCMJ by being disrespectful in language and deportment toward an NCO by yelling at him in a profane and aggressive manner;

	b.  violating Article 91, UCMJ by being disrespectful in deportment toward a senior NCO by acting in an aggressive and violent manner toward him, subsequently resulting in the applicant slamming his fist against a wall in anger; and

	c.  violating Article 108, UCMJ by willfully damaging by punching a wall, military property of the United States.
5.  The applicant's punishment for these offenses was:

* Reduction from the rank/pay grade of specialist (SPC)/E-4 to private first class (PFC)/E-3
* Extra duty for 14 days
* Restriction for 14 days, suspended, to be automatically remitted if not vacated before 31 May 2006
* Oral reprimand

6.  His record contains a DA Form 4187 (Personnel Action) and Headquarters, 58th Brigade Combat Team, Orders 251 which show he was reduced to PFC/E-3 as a result of the Article 15 with an effective date and date of rank (DOR) of 2 May 2006.

7.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, his record contains Headquarters, U.S. Army Fort Dix, NJ Orders 335-0005, dated 1 December 2006, which show he was reassigned to the U.S. Army transition point for transition processing.  After processing, he was to be discharged from the National Guard, effective 1 December 2006.  The applicant's rank is shown as private (PV2)/E-2 in the standard name line of these orders.  The document that served as the catalyst for his reduction to PV2/E-2 is not available for review.

8.  His DD Form 214 shows:

* his rank/pay grade as PV2/E-2
* his effective date of pay grade as 25 September 2006
* he was discharged on 1 December 2006
* he completed 10 months and 27 days of active duty service
* his service was characterized as Under Honorable Conditions (General)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b)
* his separation program designator code (SPD) was "JKA"
* his narrative reason for separation was "Pattern of Misconduct"
* he authenticated the document with his signature, indicating that it was administratively correct

9.  Headquarters, MDARNG, Fifth Regiment Armory, Orders 059-085, dated 28 February 2008, as amended by Orders 074-068, dated 14 March 2008, show the applicant was discharged from the ARNG and as a reserve of the Army effective 2 December 2006 under the provisions of Army Regulation 635-200, paragraph 14-12(b) with a service characterization of general, under honorable conditions.  The applicant's rank is shown as PFC/E-3 in the standard name line of these orders.

10.  His NGB Form 22 shows:

* his rank/pay grade as PFC/E-3
* his DOR as 2 May 2006
* he was discharged on 2 December 2006
* his service was characterized as Under Honorable Conditions (General)
* he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(b)
* his narrative reason for separation was "Pattern of Misconduct"

11.  On 9 September 2014, the president of the Army Discharge Review Board (ADRB) informed the applicant that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged.  As a result, his request for a change in the character and/or reason of his discharge was denied.

12.  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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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 Soldier's overall record.  Only a general court-martial convening authority (GCMCA) may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. 

13.  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.


14.  Army Regulation 635-5-1 (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 that SPD code JKA is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12(b), for a pattern of misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his general discharge should be upgraded to an honorable discharge and that the narrative reason for his separation should be changed were carefully considered and determined to lack merit.

2.  His contentions that he did not have a pattern of misconduct and that he was unjustly separated due to personality conflicts were considered.  However, evidence shows he was reduced in rank/pay grade on two occasions which suggests that he was subjected to punishment under the UCMJ at least twice.  The dates of his reductions were as follows:

* from SPC/E-4 to PFC/E-3 effective 2 May 2006
* from PFC/E-3 to PV2/E-2 effective 25 September 2006

3.  The applicant contends he was a good Soldier with the exception of one incident.  However, the evidence clearly indicates he was a substandard Soldier for at least 6 months before his chain of command had him separated from service.  This delay in separation following the initial incident is an indication that his chain of command afforded him an opportunity to rehabilitate, but he failed to respond appropriately.

4.  The evidence of record shows he was discharged due to a pattern of misconduct.  In the absence of evidence to the contrary, it is presumed that the narrative reason for his separation was accurate, all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant reviewed his DD Form 214 for administrative accuracy and authenticated it with his signature.  It is unknown why it took his ARNG unit over 2 years to issue orders discharging him from the ARNG, but it is apparent that they were unaware of the action taken to reduce him from PFC/E-3 to PV2/E-2 on 25 September 2006 while he was still serving on active duty. 

6.  In view of the foregoing, there is no 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)                                         AR20140016725





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140016725



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1