ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 13 December 2019 DOCKET NUMBER: AR20190014702 APPLICANT REQUESTS: change of the narrative reason shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from misconduct to hardship. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 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 (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 believes this was incorrect due to the circumstances of his unborn child the time having serious illness when his spouse was pregnant. He was not able to be there with them. His child had to have many blood transfusions and she was not looking well. His wife was very scared and alone. His daughter was then born and had to stay in hospital at the time and his wife needed him; but, he had to serve his country and he was proud to do that but he was also scared for them as well. He does not think it is fair to say "Misconduct" as his discharge when I was mentally and physically drained trying to drive to Oklahoma every weekend and turning right back around to do what he had to do for the military. He was never told it would imply misconduct. He had many issues going on with his unborn child and wife. He has paid for his own schooling (No VA benefits) and all medical as well. He needs help and he asks his issue be resolved quickly. 3. Review of the applicant's service records shows: a. He enlisted in the Regular Army on 13 January 1994. He held military occupational specialty 12F (Engineer Track Vehicle Crewman). b. He served in Southwest Asia from 22 October to 22 November 1994. c. On 1 December 1994, he appeared for arraignment before the State Court of County and sentenced to payment of a fine, and community service. d. He was frequently counseled by members of his chain of command for various infractions, including: * failing to turn in chemical equipment * failing his Army Physical Fitness Test on two occasions * lying to a noncommissioned officer * failing to prepare for class * losing his ID card * being absent from appointed place of duty on multiple occasions * missing formation and missing physical training * overall unsatisfactory performance * driving under the influence of alcohol e. On 11 September 1995, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 14-12(b) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for misconduct - pattern of misconduct. The immediate commander cited the applicant’s continued failure to be at his appointed place of duty (being absent on multiple occasions). f. On 12 September 1995, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel, and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He also elected not to submit a statement on his own behalf. He acknowledged that: * he understood he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he understood that as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and state laws g. The applicant’s immediate commander initiated separation action against him in accordance with paragraph 14-12(b) of AR 635-200 for misconduct - pattern of misconduct, with the issuance of a general discharge. His intermediate commander recommended approval of the separation action for misconduct. h. The separation authority approved the applicant’s discharge under the provisions of chapter 14 of AR 635-200 by reason of misconduct - pattern of misconduct and directed the applicant be furnished a general, under honorable conditions discharge. Accordingly, the applicant was discharged on 30 October 1995. i. The DD Form 214 he was issued confirms he was discharged on 30 October 1995 in accordance with chapter 14 of AR 635-200 with a general, under honorable conditions discharge. This form further confirms he completed a total of 1 year, 9 months, and 18 days of creditable active military service. He was assigned Separation Code JKA. j. On 1 September 2010, the Army Discharge Review Board (ADRB) reviewed his separation processing and determined that he was properly and equitably discharged. Accordingly, his request for a change in the character and/or reason of your discharge was denied. 4. By regulation (AR 635-200): a. Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally 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. Chapter 6, paragraph 6-3, states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted. 5. By regulation (AR 635-5-1), the "JKA" Separation Code is the correct code for Soldiers separating under paragraph 14-12(b) of AR 635-200 by reason of misconduct. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct, the record of counseling, his civilian arraignment, the reason for his separation, the absence of his statement in response and whether to apply clemency. The Board found insufficient evidence of in- service mitigation for his instances of misconduct, and the applicant provided no documents in support of the statement he submitted with his claim. The applicant provided no evidence of post-service achievements or letters of reference in support of clemency determination. Based on a preponderance of evidence, the Board determined that the narrative reason for the applicant’s separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not 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. 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. 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 three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separation) 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 included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record. b. Chapter 6, paragraph 6-3, states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship. The regulation provides that hardship exists when, in circumstances not involving death or disability of a member of a Soldier’s (or spouse’s) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. Under this provision for hardship discharge, parenthood of married service women and sole parenthood are the two conditions under which separation may be granted. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JKA" SPD code is the correct code for Soldiers separating under paragraph 14-12(b) of AR 635-200 by reason of misconduct. Nothing Follows