IN THE CASE OF: BOARD DATE: 31 October 2013 DOCKET NUMBER: AR20130004756 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 under other than honorable conditions discharge. 2. The applicant also requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * he did receive a high school diploma or equivalent * he completed 2 years, 10 months, and 8 days of active duty service 3. The applicant states: a. He is requesting an upgrade to his discharge to receive benefits. He takes full responsibility for his actions as a Soldier and he blames no one but himself. However, when he was discharged, he was told by his commanding officer that he would be eligible to reenlist 2 years later so he could rectify his previous service record. When he tried to reenlist, he was denied. b. He had a drinking problem while in the service and was intoxicated every time he received an Article 15. He believes he was a good Soldier when he was on duty. This has taken a devastating toll on his life as a civilian and he has no criminal record. He would like the dark cloud that has been over his life for almost 30 years lifted. c. His DD Form 214 does not show he received a high school diploma or equivalent. He completed his general education testing and received his general educational development (GED) diploma at Fort Carson, CO. His DD Form 214 also shows he served on 2 years and 7 months but he actually served for 2 years, 10 months, and 8 days. 4. The applicant provides page 1 of OSA Form 172 (Military Review Boards - Case Report and Directive) in Case Number AD96-01552. 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 on the Regular Army (RA) on 17 July 1980. He completed basic training and advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 19E (M-48/M-60 Armor Crewman). On 13 November 1980, he was assigned to the 6th Battalion, 32nd Armor Regiment, Fort Carson. 3. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: * 19 December 1980, for being derelict in the performance of his duties for possessing alcoholic beverages while downrange on 10 December 1980 * 22 April 1981, for wrongfully engaging in a fist fight on 13 April 1981 4. On 21 May 1981, he was assigned to the 1st Squadron, 10th Cavalry Regiment, Fort Carson. 5. He accepted NJP under Article 15, UCMJ on: * 22 March 1982, for disobeying a lawful order by having a female in his room on 13 March 1982, and for being drunk and disorderly on 15 March 1982 * 23 September 1982, for destroying military property of a value of about $300.00 on 27 August 1982 * 25 January 1983, for wrongfully engaging in a fist fight with another Soldier on 7 January 1983 and for disobeying a lawful order from a noncommissioned officer (NCO) on 14 January 1983 * 6 April 1983, for being disrespectful in language to a warrant officer (WO) on 31 March 1983 * 11 April 1983, for drunk driving on 1 April 1983 6. Records show that on an unknown date, the applicant was notified by his immediate commander of his intent to initiate discharge action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for misconduct - pattern of misconduct. The applicant acknowledged receipt of the commander's discharge action and of the rights available to him. 7. On 29 April 1983, his intermediate commander recommended approval of the discharge action and stated the applicant had shown no retention potential. He further stated a rehabilitative transfer would not be in the best interests of the Army or the applicant. 8. On 3 May 1983, the applicant consulted with legal counsel and he was advised of the basis for the discharge action initiated against him for a pattern of misconduct, the type of discharge he could receive, of the procedures and rights available to him, and the effect of waiving his rights. He acknowledged he understood if he were issued a general, under honorable conditions discharge he could expect to encounter prejudice in civilian life. He further acknowledged he understood if he were issued an under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. He acknowledged he would be ineligible to apply for enlistment in the Army for a period of 2 years after his discharge. He waived consideration of his case by a board of officers and elected not to submit a statement in his own behalf. 9. On 10 May 1983, the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct, and directed the issuance of an Other Than Honorable Conditions Discharge Certificate. On 24 May 1984, he was discharged accordingly. 10. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - a pattern of misconduct with an under other than honorable conditions characterization of service. This form also shows in: * Item 11 (Primary Specialty Number, Title and Years and Months in Specialty), he held MOS 19E for 2 years and 7 months * Item 12c (Net Active Service This Period), he completed 2 years, 10 months, and 8 days of net active service * Item 16 (High School Graduate or Equivalent), the "NO" block was checked to indicate he was not a high school graduate or had a GED * Item 26 (Separation Code), the entry JKM * Item 27 (Reenlistment (RE) Code), the entry RE-4 11. Item 17 (Civilian Education and Military School Schools) of his DA Form 2-1 (Personnel Qualification Record) shows he attended two years of high school and did not graduate. His record is void of any documentation showing he received a GED prior to his entry on active duty or while serving on active duty. 12. There is no evidence that shows he requested assistance or counseling for a drinking disorder/problem while serving on active duty. 13. On 13 February 1997, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge and determined he had been both properly and equitably discharged. 14. 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. Paragraph 14-12b provided for separation for a pattern of misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 15. Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states in item 11, enter the title of all MOSs served for at least 1 year and include for each MOS the number of years and months served. For time determination, 16 days or more count as a month. Do not count basic training and AIT. 16. 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. It states that the SPD code JKM is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct – pattern of misconduct. The SPD/RE Code Cross Reference Table stipulates that an RE-4 code will be assigned to members separated under these provisions with an SPD code of JKM. 17. Army Regulation 635-200 further states that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR). Table 3-1 included a list of the RA RE codes: a. RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. c. RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification. They are ineligible for enlistment. DISCUSSION AND CONCLUSIONS: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP's he received on six different occasions for engaging in fist fights, disobeying lawful orders, being disrespectful to a WO, being derelict in the performance of his duties, and for drunk driving. Accordingly, his commander initiated separation action against him for a pattern of misconduct. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 3. Notwithstanding his contention he was told he would not be eligible to reenlist in the Army for 2 years after his discharge, the evidence of record confirms his RE code was assigned based on his separation under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct. The separation code associated with this type of discharge was "JKM" and the RE code associated the reason for his separation is RE-4. As such, he received the appropriate RE code associated with his discharge. The applicable regulation states an RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification; they are ineligible for enlistment/ reenlistment. 4. Notwithstanding his contention that he had a drinking problem while serving on active duty, while he may have received NJP for alcohol-related offenses, the evidence of record does not show that he requested assistance or counseling for a drinking disorder/problem while serving on active duty. 5. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 6. Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an honorable or a general discharge. 7. With respect to the amount of his service, it appears the applicant may have misread the entries on his DD Form 214. Item 11 of his DD Form 214 correctly shows he served in MOS 19E for 2 years and 7 months and item 12c correctly shows he completed 2 years, 10 months, and 8 days of net active service. Therefore, there is no basis for granting this portion of his request. 8. With respect to his DD Form 214 not showing he had a GED, the evidence of record is void of any evidence, and the applicant has not provided any evidence, that shows he received a GED before his entry on active duty or prior to his discharge from active duty. Therefore, there is an insufficient evidentiary basis for granting this portion of his 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) AR20130004756 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130004756 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1