RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 September 2007 DOCKET NUMBER: AR20070003776 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mr. Michael L. Engle Analyst The following members, a quorum, were present: Mr. James E. Vick Chairperson Mr. Ronald D. Gant Member Mr. Rowland C. Heflin Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to remove the word “desertion” from the narrative reason for his separation. 2. The applicant states, in effect, that this entry was unlawful and added by his commander intentionally to cause him further injury. 3. The applicant provides a copy of Special Court-Martial Order Number 61, dated 8 August 1985. 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. On 19 June 1980, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and the Basic Airborne Course and was awarded military occupational specialty 76Y1P (Unit Supply Specialist, Airborne). 3. On 19 May 1983, the applicant immediately reenlisted in the Regular Army for another 3 years. He had attained the rank of specialist four, pay grade E4. 4. Special Court-Martial Order Number 61, Headquarters, Fort Bragg, North Carolina, dated 8 August 1985, shows that the applicant was charged with violation of Article 85, desertion. The applicant pled not guilty to Article 85, but guilty to Article 86, absence without leave, for the period from 13 February to 19 March 1985 (36 days). The finding of guilty by exceptions and substitutions to the charge and its specification was based on the applicant’s plea of guilty with those exceptions and substitutions. The adjudged sentence included a forfeiture of $300.00 pay per month for 2 months, 83 days in confinement, and a bad conduct discharge. Only so much of the sentence as provided for a forfeiture of $300.00 pay per month for 2 months, 30 days confinement, and a bad conduct discharge was approved by the special court-martial convening authority. 6. Accordingly, on 1 December 1986, the applicant was separated with a bad conduct discharge. 7. Item 26 (Separation Code) of the applicant's DD Form 214 shows "JJC." Item 28 (Narrative Reason for Separation) shows "As a result of court-martial, desertion." 8. 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. The SPD code of JJC was the appropriate separation code under the provisions of Army Regulation 635-200, as a result of court-martial for desertion. This regulation also provides a SPD code of JJD for separation as a result of court-martial-other. DISCUSSION AND CONCLUSIONS: 1. The evidence clearly shows that the applicant went AWOL for more than 30 days and was charged with desertion. However, he was found guilty and convicted by a special court-martial of being AWOL. Therefore, the SPD code of JJC and its corresponding narrative reason is incorrect. 2. Therefore, the applicant's DD Form 214 should be corrected to show the appropriate SPD code of JJD and a narrative reason of: Court-Martial-Other. BOARD VOTE: _RCH___ __JEV___ __RDG__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records, in particular the DD Form 214, of the individual concerned be corrected by: a. showing in Item 26 (Separation Code): JJD; and b. showing in Item 28 (Narrative Reason for Separation): Court-Martial-Other. ______________________ CHAIRPERSON INDEX CASE ID AR20070003776 SUFFIX RECON DATE BOARDED 20070919 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION GRANT REVIEW AUTHORITY ISSUES 1. 110.0200 2. 3. 4. 5. 6.