IN THE CASE OF: BOARD DATE: 17 June 2021 DOCKET NUMBER: AR20210006972 APPLICANT REQUESTS: Correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) by: a. Upgrading her character of service from under honorable conditions (general) to fully honorable under the provisions of Army Regulation (AR) 635-200, chapter 8 (Pregnancy), in lieu of AR 635-200, chapter 14, misconduct. b. Changing her separation and reentry codes to more favorable codes. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Character/Witness Statement * Character References x3 * Memorandum, United States (US) Army Correctional Brigade, Fort Riley, KS 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 the sentencing jury left her the option to return to the military. The Commander, US Army Correctional Brigade chose the separation article and code. She was a single mother with an infant and chose not to reenter the military, she did not know how she could manage an infant while enlisted. 3. The applicant provides: a. A personal statement requesting the Board consider modifying her character of service, separation code, and flag [reentry code]. She believes the declaration of a serious misconduct with a flag is inequitable. She was not aware of the problem regarding her character of service until recently. In 2017 she applied and was selected as a Veterans Assistance counselor. During the new employment processing she provided a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty), drug screen, and completed the new hire packet. She provided the "deleted" version of her DD Form 214, but the Department of Veterans Affairs (VA) required the "undeleted" version as the separation code was necessary to process her paperwork. Upon the VA seeing her "undeleted" DD Form 214, she was informed she could not occupy any VA position with the separation code documented on her DD Form 214. After a discussion with the VA Regional manager it was suggested that she attempt have her DD Form 214 revised. Additionally, she states: (1) The discovery was puzzling because in 2001, after 9/11, she commenced to reenter the military. She completed her physical and was advised a mandatory waiver was required to reenter the military. She assumed the prerequisite was based on the grounds that she was involved in a baneful accident during her enlistment and retraining was essential, the reason resulting from the separation code was never explained. With discontent her reenlistment effort was terminated for the sake of her husband, he confessed imminent divorce if she pursued it. (2) She is hopeful for forgiveness for something that occurred over 20 years ago. (3) She requested her records in September 2017 to ascertain if there were any grounds for the specific code that she was given. On the presumption that maybe, over time she had forgotten about previous misbehaviors. Upon reviewing her records, she did not find any particular reason for the separation code other than the misfortune of making a sever misjudgment of driving under the influence of alcohol and causing the loss of a dear friend. (4) The counseling she received upon discharge was just a general acknowledgement regarding rejoining the military. Some time has passed and her memory may not be at its peak, but she does not recall that it was explained to her that due to her separation code she would have difficulties in civilian life. With that being stated she is seeking assistance from the Board. (5) She enlisted through the delayed entry program in March 1988 for training as a military police (MP). Her training progressed extremely well. She attended the military working dog handler course, was certified and was assigned to Kriegsfeld Special Weapons Depot (North Point) in Germany as an MP Dog Handler. (6) She ascended through the ranks and was advanced to pay grade E-4 in 1990. She competed and triumphed as a Soldier of the Quarter receiving an Army Achievement Medal for meritorious achievement. Shortly thereafter she participated in the Soldier of the Year event, sadly her efforts were futile, but she was grateful at the opportunity. All of her commanding officers reported great reviews regarding her attitude and performance. She was exceling at "Being All She Could Be." (7) She originally enlisted as a consequence of no direction in her life, but soon discovered her sense of purpose. “To be all I could be.” (8) The beginning of an ordinary day, on 30 April 1990, ended on 1 May 1990 with a jolt to her core. She and some other Soldiers of the 558th MP Company congregated outside the barracks socializing and drinking. (9) She and four other Soldiers crammed into a rental car (Ford Fiat) and traveled to the Landsthul Nightclub to celebrate one of those Soldiers upcoming permanent change of station move. Driving on twisting, winding, country roads from the remote base through some modest towns to gain access to the autobahn on-ramp with typical young adult conversation happening approximately 40 minutes into the road trip a Soldier in the front seat, repositioned his body to converse face-to-face with the men in the backseat. Immediately upon him shifting his weight the vehicle instigated swaying, the stiff steering wheel caused her to struggle to remain within her traffic lane. The automobile struck the cement median barrier, then began wandering outside of the lane on the autobahn. Each maneuver to resume control was overcorrected colliding with the barrier several times, finally smashing into the rigid concrete, the car was thrust into a rotation. (10) Utilizing her hands, she shielded her eyes at the onset of the car convolution because of a solid wall, the median barrier, filled the view through the windshield and was nearing. Once the revolving concluded she uncovered her eyes to descry only three of them remained in the vehicle. The Fiat was halted on the driver's side. One Soldier was partially ejected through the driver's side window trapping him and she was in the front seat [driver]. Another Soldier was unrestricted in the backseat yielding access for him to escape through the rear window. Other drivers stopped to offer assistance. (11) They evacuated the automobile and ensued walking although she has no memory of the logic behind the walk. She noticed someone on the ground incapable of recognizing the individual encompassed in blood she became psychotic. She was in such hysteria that another Soldier ventured to soothe her. As she made full eye contact with him she observed blood streaming from a laceration on his head. That is her last remembrance from the fatal crash site, even though she has recapitulated that day over and over in her mind. (12) The German Emergency Medical Technicians (EMT) transported them to an American hospital. She encountered two of the Soldiers while anticipating x-rays and examination. They conversed, analyzing the accident factors. She questioned them concerning the status of the other two men, neither had information. They disclosed the car flipped approximately five times and how the German EMTs necessitated administering her an injection to alleviate anxiety. MP’s arrived after her evaluation was completed to initiate their interrogation. Querying her with questions such as “what was their destination,” the location of their departure, etc. She requested their travel direction to reciprocate as she was extremely confused. She responded to their inquest as candid as possible. The MPs concluded their questioning ensuing her platoon leader, along with some commissioned officers, and entered her room to discuss the incident. She inquired concerning the other two Soldiers as she was still unaware of their condition. One Soldier had flown out of the rear window impacting the asphalt with his brain stem dying instantly and a second had a broken arm and he would heal satisfactorily. She was devastated knowing that she had negligently ended a life. (13) The week following the accident she obsessed over why God had taken the [deceased] Soldier and not her. She was at fault not him. She replayed the collision over and over attempting to visualize how [the deceased Soldier] could have been ejected through the rear window. He was seated in the middle of the backseat. What happened to cause the Soldier sitting between two other individuals to fly out of the back window? She thought about all the things he would never have the opportunity to ever do again. She struggled with her emotions considering she was strait-laced, how could she cause harm to another human being? She was guilt-ridden, on the other hand she was raised to never show emotion, which was a form of weakness, and she began to dissociate with the world around her. (14) The commander began driving while intoxicated (DWI) briefings and she was repeatedly forced to relive her reckless actions and the consequences for others caught driving impaired. If she attempted to abscond or avoid a DWI briefing the commander would blurt out her name drawing attention to her. His opinion was that she was not remorseful, according to him she was not displaying the appropriate apologetic behavior by not openly crying. Her disposition was scrutinized by everyone, people treated her as if she intended to harm the deceased Soldier. Her psychological state was disarranged, the emotions of concealing her insecurities, camouflaging her weakness (crying), her culpability for his regrettable departure, along with anger because God seized the wrong life. She was overwhelmed with an abundance of emotions that she was unprepared to engage meanwhile criticized by virtue of the lieutenant's judgment. He sought maximum prosecution against her providing an example to the entire base for driving under the influence penalties. (15) After the collision she became involved in an interracial relationship and got pregnant knowing her family would disown her. Meanwhile, she maintained meetings with her Judge advocate general (JAG) lawyer to prepare for the court-martial that he claimed was winnable. The German Blood Alcohol Test (BAT) and the American “BAT” results did not concur/match. Her BAT levels increased at the American hospital even though that BAT was taken hours later. Her JAG lawyer advised her to fight the charges, the evidence was in her favor the mixed BAT results could be thrown out on technicalities. Another favorable event explained by her lawyer was the contradictions in the two MP reports. One of the MPs sensed during his interrogation that she was incoherent due to intoxication the other perceived the cause to be distress over the wreck. Her only thoughts nonetheless were those of the deceased Soldier and it would be immoral not to be penalized for her negligent actions. (16) Her mom proclaimed during her entire childhood “don't do the crime if you can't do the time.” She desired to atone for her irresponsible behavior and willingness to comply with the court martial adjudication. (17) Her lawyer rationalized that if she was to be incarcerated, she should concede to a plea bargain. The agreement would commit her to a maximum of 18 months in confinement, however, a court-martial sentencing hearing was required to determine her ultimate punishment. (18) She pled guilty to what she understood to be negligent homicide and reckless endangerment and the jury sentenced her to 18 months' minimum confinement, with suspended pay for 6 months and reduction in rank to private/E-1. No restrictions were imposed, providing her the opportunity to reenter [the military] through a retraining program. After the hearing a few jury members approached her expressing their compassion for the difficult situation. They understood that she was an outstanding Soldier but her negligent actions required some type of discipline. (19) Her son was born amidst her imprisonment and his father relocated to Fort Riley to nurture him and provide her visitation. Their strained relationship deteriorated. She served 14 of the 18 months she was given due to good-behavior credit. Upon discharge she was dispensed airfare and processed out with a general discharge. Being a single parent retraining to continue a lifelong career in the Army did not appear to be a feasible option coupled with a general discharge. (20) Months after the dreadful occurrence, she wrote to the deceased Soldiers parents expressing remorse and apologizing for her remiss actions. Their forgiveness improved her psychological well-being. She realizes tragedy can influence personal evolution. The heartache she experienced was evidence of her humanity and suffering for the rest of her life. Her post-traumatic growth generated self-acceptance. She can never compensate for the Soldiers death, but she can decrease the scope of tragedy by refraining from becoming a victim punishing herself forever. Moving forward she concluded to apply maximum effort and live in service to her community, profession, friends, and family. In her yearning to serve others she shares her experience validating feelings as normal, not just accepting them but vocalizing them as well. She counsels friends and family who struggle with life's tragedies and disappointments helping them cope and process their emotions achieving peace with their adversity. Her dreadful and disastrous accident aside, she opines that her service record, including her enlistment performance reports, rate of promotions, awards, decorations, and letter of commendation demonstrates that her service/years before the predicament was both faithful and honorable. Even in confinement all routine reports were satisfactory and superior evaluations. She had one minor offense while in confinement regarding forgetting to sign in when she made an unscheduled appointment. (21) She has led a law-abiding, moral, and responsible life with zero arrests for any circumstances much less misconduct, drug or alcohol related. Living as a virtuous citizen following the letter of the law, with the exception of a few speeding tickets. She raised two children who also possess no criminal activity or records. Gratuitously supporting her community baseball park for a 20-year duration, additionally volunteering for school activities afterhours. (22) She has attained a Bachelor’s of Science in Business Management without the financial aid of her GI Bill, as it had expired by the time she returned to school. Her record corroborates her life's journey as a valuable asset to her family and community. The sentencing jury did not apply a misconduct discharge, therefore the brigade commander, characterized her service as such. (23) Her DD Form 214 labels her as someone who has serious misconduct/behavior. She considers this label as an injustice, because the offense was an isolated event even though it was a grievous and unfortunate infraction. However, it is vital for the Board to assimilate that she recollect the events leading up to the disastrous crash often. She is petitioning the Board to exculpate her isolated incident and adjust her character code [separation code] from serious misconduct to an honorable condition and remove the flag [reentry code]. Additionally, she provides character reference letters and background information affirming her admirable demeanor before and after her expiration term of service for the Board’s review. b. Mr. TM, a character reference and witness [to the accident] states he met the applicant more than 30 years ago at Kriegsfeld Army Depot, Germany, where they served as canine handlers. The applicant was a good friend, confidant, and Soldier. In May 1990, he was involved in a vehicle accident along with the applicant and three other Soldiers while on the German autobahn. Several Soldiers were injured and one died as a result of his injuries. The extent of his own injuries were traumatic brain injury and post-traumatic stress disorder. The applicant was sentenced to serve 18 months in confinement and a forfeiture of 6 month’s pay for her role as the driver in the accident. One incident does not define our lives but it helps shape and mold us. The suffering from this incident has gone on much too long. The applicant is a good, hard working provider for her family. He would entrust his life to her. She will forever be his sister in arms. c. Three character references: (1) Mr. JB states, it is with great honor and delight that he composes this letter on behalf of the applicant. The applicant has worked at Automated Productions under his supervision for 7 years. She is supportive, dedicated, and has exemplary work ethics. She is intelligent, hardworking, and a team player who goes the extra mile. Her unfortunate recent layoff was the direct result of downsize during slow economic times. She always strives to be the best she can be. In 2015 she earned her Bachelor of Science in Business Management, giving her the opportunity to become extraordinarily successful. Although they no longer work together their friendship has deepened through the years. She is a warm, thoughtful, dependable person, always there to help a friend. (2) Ms. AHM states she has been friends with the applicant just over 2 years. There was a time when she needed a place to stay and the applicant opened up her home to help her. She lived in the applicant’s home for a minimal $200 a month. The applicant displayed a high degree of integrity, responsibility, and respect. The applicant is a remarkable human being, generous, kind, intelligent, polite, and willing to help everyone. It was a horrible unfortunate accident and the applicant served her time. The applicant has not had any repeated offenses. She honestly does not know what she would have done without the applicant being in her life. She hopes the applicant will be given a chance to prove that she is the trustworthy person she knows her to be. (3) Ms. TS states the applicant has always embraced an attitude of gratitude that the cup is half full. After graduating from high school, she joined the military, was assigned to Germany, and was advanced to pay grade E-4 in less than 2 years. She was awarded the Army Achievement Medal as Soldier of the Quarter and was on her way to attend the sergeant’s course. The applicant’s decision to drive that night in May 1990 originated from her take charge nature and was made with honorable intent and no malice or ill will. She humbly paid the price for that decision and was released in 1992. Upon return home she embraced family, marriage, two children, school, and a job. She participated in her daughters and community activities. A divorce never stole her smile or positive attitude. She was in school with a 3.37 grade point average while working full time. She is a good person, always doing the right thing, when no one is watching. She is the one that family and friends turn to for help and advice. She does not lie or cheat. She is well grounded, reliable and trustworthy. She has never complained about having to work hard her entire life with minimal financial and emotional support. Please grant her clemency for the tragic decision that she made 27 years ago in Germany. The applicant is a blessing to all who know her there is no one more deserving of forgiveness than the applicant. d. Memorandum for Commander, A Company, 3rd Battalion, US Army Correctional Brigade, Fort Riley, KS, subject: Return to Duty, stating: (1) The applicant was formally counseled in reference to her possibly of returning to duty and participating in the Military Instruction Course (MIC). (2) My initials at the end of this paragraph indicates I have received a handout from the Commander of A Company, 3rd Battalion that describes the necessary steps, rules and obligations that I must meet in order to qualify for the MIC. (3) The applicant circled and initialed, “I do not desire to return to duty.” 4. On 3 May 1988, the applicant enlisted in the Regular Army for 4 years in pay grade E-1. She completed one station unit training at Fort McClellan, AL and was awarded military occupational specialty (MOS) 95B (Military Police). She was assigned to Lackland Air Base, San Antonio, TX, for further training and on 9 December 1988, she was assigned to the 558th MP Company in her MOS with the principal duty of a dog handler. The highest rank/grade she achieved was specialist/E-4. 5. On 1 May 1990, the applicant was involved in a vehicle accident while operating it in a reckless manner while under the influence of alcohol. Three Soldier were injured and a forth was deceased due to his injuries. The available evidence indicates the applicant had a pretrial agreement. 6. General Court-Martial (GCM) Order 17 shows the applicant pled guilty and was found guilty on 1 May 1990 of: a. Article 111, for one specification of recklessly operating a passenger car while drunk and causing the vehicle to strike a concrete road divider and rolling over causing injuries to Private/E-2 TJK, E-2 LJ, and Specialist RJP on 1 May 1990. b. Article 134, for one specification of unlawfully killing a specialist by negligence when recklessly operating a passenger car while under the influence of alcohol. c. On 7 December 1990, the sentence was adjudged and included confinement for 18 months, a total forfeiture of all pay and allowances for 6 months, and reduction to private E-1. 7. A Confinement Order, dated 7 December 1990, shows she was confined at Manheim Confinement Facility for the offenses of Article 134 Negligent Homicide and Article 111 Reckless Driving. 8. A Medical Examiners Report, dated 8 December 1990, shows the applicant as 12 weeks pregnant. 9. On 10 January 1991, she was confined at the U.S. Army Correction Brigade (USACB), Fort Riley, KS. 10. On 16 August 1991, a medical examination determined she was qualified for separation. On the same date a Report of Mental Status Evaluation shows she was mentally responsible and had the mental capacity to understand and participate in proceedings deemed appropriate. 11. On 19 August 1991, the U.S. Army Court of Military Review affirmed the findings and sentence approved. There is no evidence to available to indicate that she petitioned the U.S. Court of Military Appeals for a review of her case. 12. A Military Police Report, dated 30 September 1991, shows while in confinement, the applicant committed one minor offense [failing to obey a lawful general order or written regulation]. She went to “IACH” for an appointment with CHAMPUS [Civilian Health and Medical Program of the Uniformed Services] and failed to sign in at the MP Desk because she thought she was going to be able to run in and take care of her business in a matter of a few minutes then get back on the bus to USACB. On 11 October 1991, the applicant pled guilty before a Discipline and Adjustment Board. Her punishment consisted of a verbal 30 days of deprivation of privileges. The Board further recommended a loss of 30 days of good conduct time with 15 of those days being suspended for 60 days. 13. A General Counseling Form, dated 9 November 1991, signed by the applicant acknowledging she was counseled and advised: a. Failure to comply with the training standards or other acts in violation of Army Regulations Uniform Code of Military Justice (UCMJ), Civil law, or the customs and traditions of the Army in general would result in appropriate measures being taken, including a recommendation that she be eliminated from the service under the provisions of Army Regulation (AR) 635- 200. b. Of the various characterizations of service that may accompany such separations and of probable effects of receiving a discharge under honorable conditions (General) or under other than honorable conditions in terms of both VA and other benefits as well as prejudice in civilian life in general. 14. The applicant’s official record contains a: a. Memorandum, subject: Recommendation for Chapter 14, [AR 635-200], dated 12 November 1991, showing she was counseled and acknowledged that she did not desire to return to duty. b. Memorandum, subject: Return to Duty, dated 12 November 1991, showing she signed and initialed this memorandum stating “I do not want to return to duty.” 15. On 12 November 1991, the applicant's commander notified her of the intent to separate her under, AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, for commission of a serious offense. The reason for this proposed action was the applicant’s conviction by general court-martial for Article 134 - negligent homicide and Article 119 - reckless driving. 16. On 18 November 1991, after consulting with counsel, the applicant acknowledged counsel had advised her of the basis for the separation action, the rights available to her, and the effect of waiving those rights. She voluntarily waived consideration of her case by a separation board contingent upon receiving a characterization of service no less favorable than general, under honorable conditions. She also acknowledged: a. She was declining to submit statements in her own behalf. b. She understood that she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her (as the result of the issuance of a discharge under other than honorable conditions, she may be ineligible for many or all benefits as a veteran under both Federal and State laws and that she may expect to encounter substantial prejudice in civilian life. c. She understood that if she received a discharge/character of vice which was less than honorable, she may make application to the Army Discharge Review Board or the ABCMR for upgrading; however, she realized that an act of consideration by either board did not imply her discharge would be upgraded 17. The applicant’s immediate and intermediate commanders recommended separation from the Army under paragraph 14-12c, AR 635-200, due to commission of a serious offense, with a general discharge. The separation authority approved the commander's recommendation. 18. On 14 January 1992, she was discharged accordingly, in pay grade E-1. She completed 2 years, 7 months, and 3 days of total active service. Her DD Form 214 also reflects in: * (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – Army Service Ribbon, Army Achievement Medal, Overseas Service Ribbon, Expert Marksmanship Qualification Badge Hand Grenade, Sharpshooter Marksmanship Qualification Badge Rifle (M-16), Marksman Marksmanship Qualification Badge Pistol 38 Caliber, and Marksman Marksmanship Qualification Badge 9 Millimeter Pistol * (Character of Service) – Under Honorable Conditions, General * (Separation Authority) – AR 635-200, Paragraph 14-12c * (Separation Code) – “JKQ [Misconduct]” * (Reentry Code) – “3B” * (Narrative Reason for Separation) – Misconduct-Commission of a Serious Offense * (Dates of Lost Time During This Period) – “901207-920113” [confinement] 19. AR 635-200 in effect at the time, provided that commanders were to initiate separation action under chapter 14 when Soldiers had committed serious offenses for which the UCMJ authorized a punitive discharge as a maximum punishment; negligent homicide and reckless driving were deemed a serious offense, and the UCMJ showed a punitive discharge could be adjudged. 20. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 134 (Negligent Homicide) carries punishment of a dishonorable discharge/bad conduct discharge, a forfeiture of all pay and allowances, and confinement for 3 years. 21. AR 635-5-1 (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. The SPD code "JKQ" is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of “misconduct-commission of a serious offense. 22. The SPD/RE Code Cross Reference Table stipulates the RE code of “3B” was to be assigned to individuals who had lost time during the last enlistment. The applicant was in confinement from “901207-920113.” 23. She provided in support of her application a: a. Memorandum showing prior to being discharged she was offered the opportunity to be considered for return to duty and she declined. b. Personal statement, witness/character reference, and three character references all described in detail above. 24. The applicant argues that her DD Form 214 should be corrected by upgrading her character of service from general to fully honorable under the provisions of AR 635-200, chapter 8 (Pregnancy), in lieu of AR 635-200, chapter 14, misconduct and her separation and reentry codes should be changed to more favorable codes. 25. The applicant was convicted of negligent homicide and reckless driving. One individual was killed and the applicant pled guilty and entered a pretrial agreement. She was sentenced to serve 18 months in confinement, a total forfeiture of all pay and allowances for 6 months, and reduction to private E-1. The applicant gave birth to a child while in confinement, but she was not discharged for this reason. She was discharged under AR 635-200, Chapter 14, paragraph 14-12c, by reason of “misconduct-commission of a serious offense, as result of completing her sentence. 26. In reaching its determination, the Board can consider the applicant's petition, her contentions, service record, and submissions in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The ABCMR is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. The applicant provided compelling character references and letters of support for the Board to consider in determining clemency. However, the Board found insufficient evidence of in-service mitigating factors for the misconduct to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and reentry code the applicant received upon separation was not in error or unjust. 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. ADMINISTRATIVE NOTE(S): 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. AR 635-5-1 (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. The SPD code “JKQ” is the appropriate code to assign Soldiers separated under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of “misconduct-commission of a serious offense. 3. The SPD/RE Code Cross Reference Table stipulates that RE code "3B" would be assigned to members separated with the SPD code of “JKQ.” 4. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA and the United States Army Reserve (USAR). Table 3-1 includes 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 unless a waiver is granted. c. RE-3B indicates the individual had lost time during the last enlistment. The applicant was in confinement and had lost time from “901207-920113.” 5. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. It provides: a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 8 establishes policy and procedures and provides authority for voluntary separation of enlisted women because of pregnancy. This chapter applies to all Active Army enlisted women and Army National Guard (ARNG) and USAR enlisted women ordered to active duty. Enlisted women who are medically diagnosed as being pregnant may, after her unit commander has counseled her concerning her options, entitlements, and responsibilities, request separation under this chapter. c. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 6. Appendix 12 (Maximum Punishment Chart), Manual for Courts-Martial shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: Article 134 (Negligent Homicide) carries punishment of a dishonorable discharge/bad conduce discharge, a forfeiture of all pay and allowances, and confinement for 3 years. 7. 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. a. 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 (to include that provided by an applicant), 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. b. 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) AR20210006972 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210006972 15 ABCMR Record of Proceedings (cont) AR20210006972 13