ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 May 2019 DOCKET NUMBER: AR20160016052 APPLICANT REQUESTS: * upgrade of the reentry eligibility (RE) code * reinstatement of his highest rank/grade held to specialist/E-4 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * resume * U.S. Public Health Service (USPHS) Commissioned Corps email 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 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: a. His RE code should be upgraded to 3B, or a similar waiveable RE code. Ideally, he would prefer to have his highest rank/grade of specialist/E-4 reinstated with an RE code of 1. b. The circumstances preceding his discharge were temporary and correctable. His record up until the events was exemplary. He suffered an acute case of untreated clinical depression. He was absent without leave (AWOL) for a brief period of time and attempted suicide. He returned to duty and was successfully treated for depression with medication and therapy. c. He was then excessively punished. He was demoted from specialist/E-4 to private E-1, was barred from reenlistment, and given an honorable discharge with RE a. code 4. This overreaction to a very common medical phenomenon has tarnished his record and harmed his potential future benefits. d. Although he would ideally prefer to have his highest rank/grade of specialist /E-4 reinstated with an RE code of 1, he humbly requests only a minor modification. In the 20 years since his discharge, he has been a highly productive member of society with no further episodes of clinical depression. He has a doctorate degree in biomedical engineering, is well-published, and is currently a civil servant for the U.S. Food and Drug Administration. He is in the process of applying for a commission in the USPHS Commissioned Corps. 3. The applicant enlisted in the Regular Army on 12 June 1991 and was promoted to the rank/grade of specialist/E-4 on 1 August 1993. 4. He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 January 1996 for absenting himself without leave (AWOL) from his place of duty at the Primary Leadership Development Course (PLDC) located at Camp Jackson, South Korea, and remaining absent until 26 November 1995. 5. He did not demand trial by court-martial and elected to present matters in defense, mitigation, and/or extenuation in person before a closed hearing. All matters in defense, mitigation, and/or extenuation having been considered, the following punishment was imposed: * reduction in rank/grade to private/E-1 * forfeiture of $431.00 pay per month for 2 months, suspended until 21 March 1996 * performance of 45 days of extra duty * restriction for 45 days 6. His records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 24 January 1996, which states: * he was counseled on two occasions (20 September 1995 and 2 October 1995) for his refusal to attend PLDC * he was enrolled in PLDC in November 1995 and was AWOL from 23 through 26 November 1995 He admitted to forging a DA Form 31 (Request and Authority for Leave) which enabled him to depart Korea without proper authority and return to the continental U.S. * he did not meet the high standards of a professional Soldier and did not demonstrate potential for continued service 7. A DA Form 4856 (General Counseling Form), dated 25 January 1996, states: 1. * he was barred from reenlistment and it was approved by the Troop Commander * he was counseled on this matter and chose to request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 16-5, due to inability to overcome a bar to reenlistment 8. A DA Form 4187 (Personnel Action), dated 25 January 1996, shows he requested immediate voluntary separation from the Army under the provisions of Army Regulation 635-200, paragraph 16-5, due to denial of reenlistment. 9. On 31 January 1996, the applicant’s request was approved. He was discharged accordingly on 9 February 1996, after 4 years, 7 months, and 28 days of net active service. His DD Form 214 shows: * his service was characterized as honorable * his narrative reason for separation was non-retention on active duty * the separation authority was Army Regulation 635-200, paragraph 16-5a, b, or c * his separation code (SPD) was KGH * his RE code was 4 * his rank/grade was private/E-1 10. There is no evidence of record the applicant was ever diagnosed with or treated for clinical depression or any other a behavioral health condition either during or after his military service. 11. The applicant provided a 13-page resume detailing his education and professional experience. He also provided an email from the USPHS Commissioned Corps, dated 6 September 2016, stating he was selected to move forward with the online application process and providing him with login instructions for the Commissioned Corps online Learning Management System. 12. On 16 July 2018, the Army Review Boards Agency (ARBA) clinical psychologist provided an advisory opinion. The ARBA clinical psychologist stated the applicant does not have a service-connected disability rating from the Department of Veterans Affairs (VA) and provided no documentation of a behavioral health diagnosis or history of treatment for a behavioral health condition from the VA or a civilian medical provider. Based on a lack of medical information, there is insufficient evidence he had a behavioral health condition that contributed to the misconduct resulting in his bar to reenlistment and subsequent voluntary separation from the Army. A copy of the complete medical advisory was provided to the Board for their review and consideration. 13. The applicant was provided a copy of the advisory opinion on 5 April 2019 and given an opportunity to submit comments, but he did not respond. 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that they could make a fair and equity decision without a personal appearance from the applicant. The Board also determined, based upon the type of discharge requested by the applicant and subsequently approved by commanders, as well as the regulatory guidance related to separation codes and reentry tables, there was no insufficient evidence to show an error or injustice which would warrant a correction to the applicant’s record. 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. 5/16/2019 X CHAIRPERSON Signed by: 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, 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 Army Board for Correction of Military Records (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. 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 DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, 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. 3. 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 1. a. It states individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. b. Paragraph 16-5 establishes policy and prescribes procedures for the voluntary separation of Soldiers denied reenlistment. Soldiers who perceive they will be unable to overcome a Headquarters, Department of the Army or a locally imposed bar to reenlistment may request immediate separation prior to their expiration term of service. The service of Soldiers separated under this paragraph will be characterized as honorable, unless an uncharacterized description of service is required for Soldiers in an entry level status. 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of RE codes. a. RE code 1 applies to Soldiers completing their terms 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 code 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 for enlistment unless a waiver is granted. 6. 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. The version in effect at the time states SPD code KGH is the appropriate code to assign to Soldiers voluntarily discharged under the provisions of Army Regulation 635-200, paragraph 16-5a, b, or c, due to non-retention on active duty 7. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 3 or 4 will be assigned to members separated with an SPD code of KGH. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. a. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.