IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190004513 APPLICANT REQUESTS: .Change of the narrative reason for separation from "Misconduct" to "Lack ofDependent Support" .Revise Separation Code (SPD) "JKH" (sic, "JKA") 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 3-year time frame provided in Title 10 (ArmedForces), United States Code (USC), section 1552 (b) (Correction of Military Records:Claims Incident Thereto). However, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file. 2.The applicant states, in effect, she was discharged because her spouse was causingproblems for her and her unit; he suffered from mental illness. Military police recordswill show her husband attempted suicide, and there were several complaints made afterhe showed up at her unit without permission. She had two young children and waspregnant; she was unable to complete her enlistment contract because she did not havean adequate support system. 3.The applicant's service records show: a.On 5 June 2001, she enlisted into the Regular Army for 3 years; she was18 years old. On completion of initial training, orders assigned her to Fort Sill, OK; she arrived on 20 November 2001. Effective 5 June 2002, her chain of command promoted her to private first class (PFC)/E-3. b.In October 2002, two civilian financial organizations stated the applicant owedthem money and was past due: .15 October 2002 – her loan with a finance company was $68.80 past due .23 October 2002 – a "Cash Drawer" printout showed the applicant was$245 past due; a branch manager noted the applicant said she would try tocome up with $40 by the 31st of October 2002; if a payment was made on31 October, the applicant would then have three remaining $40 installments c. On 5 December 2002, the applicant's supervisor (Sergeant (SGT) G__) counseled the applicant about her unpaid debts. (1) A finance company advised him the applicant had not made any payments on her account since August 2002. Because of this, the applicant's total payoff was $240. SGT G__ noted, due to another indebtedness situation, the applicant was already pending possible nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). He further stated, if she failed to correct her deficiencies, the applicant could be involuntarily discharged. (2) The applicant indicated she agreed with her supervisor's comments; in a separate undated statement, addressed to her chain of command, she stated, "It seems as if my lying has once again caught up to me." She went on to explain, in effect, she had hoped to get enough money to pay her debts, but her efforts failed; her mother never sent her any money because the applicant never called her. The applicant maintained there were just some things she could not tell her parents, and one such thing was that she had accumulated debt. She acknowledged her leadership had warned her, and she understood what could happen if she told another lie. She apologized for the inconvenience she caused; she knew she needed to act more like an adult, but, affirmed, when things became too difficult to handle, she tended to lie as a way of getting out the bad situation. d. On 10 December 2002, her supervisor, SGT G__, counseled her for failing to report for duty. e. On 16 December 2002, an Oklahoma District Court issued a misdemeanor warrant, which directed civil authority to arrest the applicant for obtaining cash or merchandise based on a "bogus check." f. On 8 January 2003, SGT G__ counseled the applicant once more about her unpaid debts. Her supervisor noted the commander had addressed her failure to pay her rent for December 2002; she was already pending UCMJ action, and her supervisor instructed her to solve her rent problem quickly. g. On 8 January 2003, and again on 29 January 2003, SGT G__ issued the applicant a counseling form in which he recorded the applicant's failure to report for physical training. h. On 25 February 2003, a civilian financial organization notified the applicant'schain of command that the applicant had written checks on a closed account; effective 3 March 2003, the account was to be processed for legal action. i. On 16 April 2003, SGT G__ counseled the applicant regarding a notice of unpaid debts; SGT G__ indicated he, the command sergeant major, and a sergeant first class had set up a budget for the applicant, along with a payment plan. (1) After preparing the budget, SGT G__ stated he was able to confirm the applicant, in fact, had enough funds to pay her debts; despite this, the applicant had failed to keep her bills current. In addition, the applicant's landlord told SGT G__ the applicant was being evicted because she was behind in her rent. (2) SGT G__ stated the applicant had consistently lied to him, her debtors, and the chain of command; as a result, he was recommending the chain of command impose the maximum NJP punishment and process the applicant for separation. j. An undated letter from a civilian legal organization stated the applicant failed to appear in court on 13 May 2003 to address allegations of rendering "bogus checks" and defaulting on a loan. The legal organization wanted the applicant's chain of command to know the applicant was in serious legal trouble, and the organization intended to prosecute her, with the result that she could be incarcerated. k. On 21 May 2003, the applicant's commander advised her in writing of his intent to separate her under paragraph 14-12b (A Pattern of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The reasons for this proposed action were the applicant's failure to report to her appointed place of duty on four occasions, making false statements to her noncommissioned officers, and writing dishonored checks. l. On 3 June 2003, after consulting with counsel, the applicant acknowledged counsel had advised her of the basis for the separation action, and had informed her of her rights and the effect of waiving those rights. She affirmed she understood she would not be entitled to have her case heard by an administrative separation board because she had less than 6 years of reserve and active Federal service. The applicant elected not to submit statements in her own behalf. m. On 5 June 2003, the separation authority approved the commander's recommendation and directed the applicant's general discharge under honorable conditions; on 17 June 2003, she was discharged accordingly. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) showed she completed 2 years and 13 days of her 3-year enlistment contract. In addition, her DD Form 214 reflected the following: .Item 13 (Decorations, Medals, Badges, Citations, and Campaign RibbonsAwarded or Authorized) – National Defense Service Medal and the ArmyService Ribbon .Item 25 (Separation Authority) – AR 635-200, paragraph 14-12b .Item 26 (Separation Code (SPD)) – "JKA" .Item 28 (Narrative Reason for Separation) – "Misconduct" 4.The applicant contends her narrative reason for separation and SPD are incorrectlylisted on her DD Form 214; while she does not state what SPD should replace thecurrent entry, she asserts her narrative reason should amended to show "Lack ofDependent Support." a.Entries in items 26 and 27 of the DD Form 214 are based on the separationauthority. Per the version of AR 635-5-1 (SPD) in effect at the time of her discharge, if the separation authority is AR 635-200, paragraph 14-12b, the required narrative reason for separation is "Pattern of Misconduct," and the associated SPD is "JKA." b.During the applicant's era of service, commanders were required to initiateseparation action against Soldiers who displayed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests. The Board considered the applicant’s statement, her record ofservice, the frequency and nature of her misconduct, civil court warrant andproceedings and the reason for her separation. The Board considered the policyassociated with separations for misconduct. The Board found insufficient evidence ofin-service mitigation to overcome the misconduct and the applicant provided noevidence of post-service achievements or letters of reference in support of a clemencydetermination. The Board considered the policy associated with separations formisconduct. Based on a preponderance of evidence, the Board determined that thenarrative reason and SPD code the applicant received upon separation was not in erroror unjust. 2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. X 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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 ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Chapter 14 (Separation for Misconduct) addressed separation for misconduct, to include for a pattern of misconduct and the commission of a serious offense. Paragraph 14-12b stated members were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. 3. AR 635-5-1 (SPD), in effect at the time, stated "JKA" applied to Soldiers whose discharge was based on paragraph 14-12b, AR 635-200. The required narrative reason for separation was "Pattern of Misconduct." 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 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. //NOTHING FOLLOWS//