IN THE CASE OF:  

		BOARD DATE:  13 January 2020

		DOCKET NUMBER:  AR20180012862


APPLICANT REQUESTS:

*	in effect, upgrade of his general discharge, under honorable conditions
*	amendment to his Separation Program Designator (SPD) code

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 293 (Application for the Review of Discharge from the Armed Forces of 
the United States)
*	DD form 214 (Certificate of Release or Discharge from Active Duty)

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United 
States Code, section 1552(b); however, the ABCMR 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 he is disabled and trying to get Department of Veterans Affairs 
(VA) benefits, but he was denied because his SPD code does not match his discharge 
type.

3.  The applicant enlisted in the Regular Army on 24 February 1999.

4.  His records contain two DA Forms 4856 (General Counseling Form), showing he 
received counseling on the following dates for the following reasons:

*	20 February 2000, for urinating in the refrigerator and burning his pillowcase and 
t-shirt while intoxicated; he was advised he should self-refer to the Alcohol and 
Drug Abuse Prevention and Control Program (ADAPCP)
*	27 April 2000, for failing to report to 0630 formation

5.  Two DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of 
Military Justice (UCMJ), show he accepted nonjudicial punishment (NJP) under Article 
15 of the UCMJ on the following occasions for the following offenses:

*	5 April 2000, for being found drunk on duty on 28 January 2000
*	12 May 2000, for failing to go to extra duty on 23 April 2000

6.  In an undated memorandum, the applicant’s immediate commander notified him of 
his initiation of action to separate the applicant prior to his expiration term of service 
under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel), chapter14, paragraph 12b, for a pattern of misconduct as demonstrated by 
his receipt of Field Grade NJP on two occasions, for being drunk on duty and for failure 
to report.  His commander notified him of his recommendation that the applicant’s 
service be characterized as general, under honorable conditions and he advised him of 
his rights to consult with counsel and submit statements in his behalf.

7.  On 10 August 2000, the applicant acknowledged receiving the notification and 
having been advised by his consulting counsel of the basis for the contemplated action 
to separate him for a pattern of misconduct.  He requested representation by consulting 
counsel and did not submit statements in his own behalf.  He acknowledged 
understanding he may expect to encounter substantial prejudice in civilian life if a 
general discharge under honorable conditions were issued to him.

8.  His battalion commander endorsed the separation action on 28 August 2000, 
recommending the applicant’s discharge under the provisions of Army Regulation 635-
200, paragraph 14-12b, for a pattern of misconduct, with service characterized as 
general, under honorable conditions.  On 30 August 2000, his battalion commander 
endorsed the separation action, likewise recommending approval of the action with 
service characterized as general, under honorable conditions.

9.  On 21 September 2000, the approval authority directed the applicant’s discharge 
under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of 
misconduct and directed his service be characterized as general, under honorable 
conditions.

10.  The applicant’s DD Form 214 shows he was discharged under the provisions of 
Army Regulation 635-200, paragraph 14-12b for misconduct on 10 October 2000, after 
1 year, 7 months, and 17 days of net active service.  His service was characterized as 
general, under honorable conditions and his SPD code was JKA.




BOARD DISCUSSION:

1.  The Board carefully considered the applicant's request, supporting document, 
evidence in the records, and published DoD guidance for consideration of discharge 
upgrade requests.  The Board considered his record of service, the frequency and 
nature of his misconduct, the reason for his separation, and whether to apply clemency. 
The Board found insufficient evidence of in-service mitigating factors and the applicant 
provided no evidence of post-service achievements or letters of reference in support of 
a clemency determination.  Based on a preponderance of evidence, the Board 
determined that the character of service the applicant received upon separation was not 
in error or unjust.

2.  The Board further determined that SPD code JKA was the appropriate code to enter 
on his DD Form 214 based on the regulatory authority for his discharge.  The Board 
agreed the DD Form 214 was prepared in accordance with the regulations in effect at 
the time.  


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, United States 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 ABCMR to excuse an applicant's 
failure to timely file within the 3 year statute of limitations if the Army Board for 
Correction of Military Records (ABCMR) determines it would be in the interest of justice 
to do so.

2.  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 court-martial forum.  
However, the guidance applies to more than clemency from a sentencing in a court-
martial; it also applies to any other corrections, including changes in a discharge, which 
may be warranted on equity or relief from injustice grounds.  This guidance does not 
mandate relief, but rather provides standards and principles to guide BCM/NRs in 
application of their equitable relief authority.  In determining whether to grant relief on 
the basis of 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.

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth 
the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members 
for misconduct.  Specific categories include minor disciplinary infractions, a pattern of 
misconduct, 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 considered 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.

	b.  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.  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

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 
the specific reasons for separating Soldiers from active duty and the associated SPD 
codes to be entered on the DD Form 214.  It states SPD code JKA is the appropriate 
code to assign to Soldiers involuntarily discharged under the provisions of Army 
Regulation 635-200, paragraph 14-12b, for a pattern of misconduct and it stated the 
narrative reason for separation would be "misconduct."

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	 AR20180012862


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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