ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 February 2019 DOCKET NUMBER: AR20160013995 APPLICANT REQUESTS: * reconsideration of his previous for correction of his reentry eligibility (RE) code to 2 * an upgrade of his general discharge under honorable conditions to honorable APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140008501 on 18 December 2014. 2. The applicant provided new arguments that were not previously considered by the Board, which merit consideration at this time. 3. The applicant states: * he was diagnosed with depression prior to being absent without leave (AWOL) from Fort Polk * he sought treatment in 2000 at the military hospital in Heidelberg, Germany * he lapsed into a greater state of depression after his grandmother died * he repeatedly checked in with his command and informed them of his status * he requested a leave extension * he was advised to wait 31 days before returning in order out-process so he could reenlist and feels this was erroneous information * he did not want to leave the Army * has attempted to reenlist six times but has failed to do so * he was promised treatment for all conditions incurred during his service * he believes he was weeded out for showing weakness 4. He enlisted in the Regular Army on 26 October 1994. 5. An Army and Air Force Exchange Service (AAFES) letter, dated 24 February 2000, shows he uttered the following bad checks (date and amount): * 8 January 2000 – $150.00 * 8 January 2000 – $100.00 * 9 January 2000 – $150.00 * 9 January 2000 – $150.00 * 10 January 2000 – $100.00 * 10 January 2000 – $150.00 6. He was counseled in writing on 7 March 2000 for failing to maintain sufficient funds to cover the aforementioned checks. He was advised that he would be administered nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice since this was his third offense. 7. He accepted nonjudicial punishment on 21 March 2000 for uttering six bad checks to AAFES on or between 8 January 2000 and 20 January 2000, and failing to maintain sufficient funds for payment. 8. On 13 June 2001, court-martial charges were preferred against him for being AWOL from Headquarters and Headquarters Troop, 4th Squadron, 2d Armored Cavalry Regiment, Fort Polk, LA, from on or about 27 April 2001 until 5 June 2001. 9. On 13 June 2001 after consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He stated he understood the charges against him and admitted guilt of the charges or of lesser-included offenses. He stated he did not desire further rehabilitation and had no desire to perform further military service. He understood that if his request for discharge were accepted, he could be discharged under conditions other than honorable and be furnished a Discharge Certificate under Other than Honorable Conditions. He was advised of the possible effects of an other than honorable discharge and that as a result of the issuance of such discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. 10. On 15 January 2002, the Commander, Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, recommended his discharge under other than honorable conditions and forwarded the applicant's request for discharge in lieu of trial by court-martial to the Commander, U.S. Army Garrison, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, for appropriate action. 11. On 25 January 2002, the Commander, Headquarters, U.S. Army Garrison, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, approved the applicant's request for discharge in lieu of trial by court-martial and directed his reduction to private/E-1. 12. On 6 February 2002, he was discharged in lieu of trial by court-martial in the rank/grade of private/E-1 under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 shows he completed 8 years, 2 months, and 3 days of active service during this period with lost time from 28 April 2001 through 4 June 2001. He was assigned separation program designator code KFS and RE code 4. His service was characterized as under other than honorable conditions. He was awarded or authorized the: * Army Good Conduct Medal * National Defense Service Medal * Army Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) 13. On 20 February 2003, the Army Discharge Review Board (ADRB) granted his request for an upgrade of his service characterization to general under honorable conditions. The ADRB voted not to change the narrative reason for discharge, finding it both proper and equitable. His rank/grade was restored to sergeant/E-5. He was reissued a DD Form 214 showing his rank/grade as sergeant/E-5 and his service characterized as under honorable conditions. 14. On 18 October 2013, the ADRB denied his request for an upgrade of his service characterization to honorable. The board determined his discharge was both proper and equitable. 15. On 18 December 2014, the ABCMR denied his request for correction of his RE code to 3. The ABCMR found his RE code was assigned based on his separation under the provisions of Army Regulation 635-200, chapter 10. The SPD code KFS is the correct code for Soldiers separating under the provisions of Army Regulation 635-200, chapter 10. The SPD code KFS has a corresponding RE code 4. The board noted discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 16. On 14 August 2018, the Army Review Boards Agency Staff Psychiatrist rendered an advisory opinion wherein she stated: a. A review of the Department of Veterans Affairs electronic medical record indicates the applicant is non-service connected and has been diagnosed with adjustment disorder with anxiety. No civilian medical documentation was provided for review. The applicant's available military records are void of any information consistent with the diagnosis of depression or any other major mental health disorder. b. There is no indication in the applicant's available military records that he failed to meet medical retention standards under the provisions of Army Regulation 40-501 (Standards of Medical Fitness). c. Based on the information available at this time, there is insufficient evidence to support the applicant's contention that the misconduct leading to his discharge under honorable conditions was due to depression he developed while serving on active duty. 17. On 17 August 2018, the Army Review Boards Agency provided the applicant the Staff Psychiatrist's opinion to allow him the opportunity to submit comment. He did not respond. BOARD DISCUSSION: The Board considered the applicant’s request with all supporting documents, evidence in the service record, and applicable regulations, policy, and guidance. The applicant did not provide any civilian medical documentation for review, and available military records are void of any information consistent with the diagnosis of depression or any other major mental health disorder. There is insufficient evidence to demonstrate that the applicant’s misconduct which lead to his separation was the result of a medical condition. Therefore the Board denies the applicant’s requests to change his RE code to 2, and to upgrade his general discharge under honorable conditions to honorable. 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 to amend decision of the Army Board for Correction of Military Records set forth in Docket Number AR20140008501, dated 18 December 2014. SIGNATURE: ___________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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. Paragraph 3-7b states 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. c. Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 includes a list of RE codes: * 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 * RE-2 applies to Soldiers who are not eligible for immediate reenlistment * 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 * RE-4 applies to Soldiers separated from their last period of service with a nonwaivable disqualification 3. Army Regulation 635-5-1 (SPD Codes), in effect at the time, prescribed the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. SPD code KFS applied to Soldiers voluntarily discharged in lieu of trial by court-martial. 4. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code KFS has a corresponding RE code 4. 5. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). 6. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and 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. ABCMR Record of Proceedings (cont) AR20160013995 6 1