ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  10 July 2019

	DOCKET NUMBER:  AR20170009968


APPLICANT REQUESTS: a change to the narrative reason for separation 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states his discharge was due to issues with his wife and infidelity, which caused a number of issues that ultimately ended his military service. 

3.  A review of the applicant’s service record shows:

	a.  He enlisted in the Regular Army on 26 August 1999.

	b.  He accepted non-judicial (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 August 2000 for:
	
* failing to be at his appointed place of duty at the prescribed time on 26 & 27 July 2000
* willfully disobeying a lawful order on 25 & 26 July 2000 by talking about his personal relationship with his wife
* willfully disobey a lawful order by answering his phone during Sergeants Time training on 26 July 2000
* willfully disobeying a lawful order by using a Soldier’s army pin number for personal use on 26 July 2000
* willfully disobey a lawful order by calling his wife’s workplace
* derelict in the performance of his duties on 26 & 28 July 2000
* making a statement with intent to deceive on 26 July 2000 and 4 August 2000’
* his punishment included a reduction in rank to private/E-1

	c.  His service record contains 8 counseling statements on various offenses ranging from 10 April 2000 to 7 September 2000:

* disobeying an order
* performance counseling – loud music in vehicle & playing games on company computer
* performance counseling – failing to be in proper uniform
* performance counseling – failing to show attention to detail
* disobeying a lawful order – not to talk to anyone about his personal relationship with his wife
* performance counseling – failure to follow a lawful order
* performance counseling – for wearing a tongue piercing in uniform

	d.  On 20 December 2001, the applicant's commanding officer notified him of her intent to initiate action to effect his discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14, for misconduct (patterns of misconduct).  Specifically for failing to be at his appointed place of duty on two different occasions, disobeying a commissioned officer, disobeying a non-commissioned officer, derelict in the performance of his duties, making false official statements and disobeyed post regulations on diverse occasions.

	e.  The applicant acknowledged receipt and consulted with counsel.  Following consultation with legal counsel, he understood his rights and acknowledged the following:

* he understood if this discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he understood that he may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf

	f.  The applicant’s commander initiated action to separation him under the provisions of AR 635-200, chapter 14, patterns of misconduct, and recommended the issuance of general discharge.

	g.  Consistent with the commander’s recommendation, the separation authority approved his discharge under the provisions of AR 635-200, chapter 14-12c, and directed the issuance of a general, under honorable conditions discharge.

	h.  His DD Form 214 shows he was discharged on 6 October 2000 under the provisions of AR 635-200, Chapter 14-12c, and given a characterization of general, under honorable conditions discharge with a narrative reason for separation of misconduct.  It also shows he had 1 year, 1 month and 11 days of active service with no lost time.  He was awarded or authorized the Army Service Ribbon the Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  By regulation (AR 635-5-1) Separation Program Designator (SPD) codes, are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.

5.  By regulation, (AR 635-200), action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history).

6.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the multiple offenses, with some criminal in nature, as well as the failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's reason for separation (misconduct) is warranted.


BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
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.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.

2.  By regulation (AR 635-5-1) SPD codes, are three-character alphabetic combinations that identify reasons for, and types of, separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of Department of Defense (DOD) and the military services to assist in the collection and analysis of separation data.  Paragraph 2-4 of this regulation, in pertinent part, lists the steps required for SPD code control and usage and is shown in table B-1.  SPD Code JKQ is the code and narrative reason associated with that SPD code is misconduct.  This is supported by AR 635-200, para 14-12c.

3.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 3-7a provided that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier’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. 

   b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.  It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to Active Duty.
   
   c.  Paragraph 14 of this regulation This chapter establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without-leave.  Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history.
   
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009968


4


1