ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 May 2019 DOCKET NUMBER: AR20170000943 APPLICANT REQUESTS: * An upgrade of his under honorable conditions discharge to honorable * Reason for separation changed to expiration of term of service * Reentry (RE) Code changed from RE-4 to RE-1 * Reinstatement of Specialist (SPC/E4) rank * Reimbursement of all reduction pay * Reimbursement of bonus * Removal of all Article 15s * Removal of discharge packet and any documentation related to it from his record * Award of Combat Action Badge (CAB) * Remarks to state “Member has completed first full term of service” * DD Form 214 (Certificate of Release or Discharge from Active Duty), item 12b (Separation Date This Period) changed to 2013-03-31 * DD Form 214, item 12c (Net Active Service This Period) changed to 03-05-31 * Back pay for all the time not served due to wrongful discharge for 1 year and 18 days for the rank of SPC/E4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Discharge Packet * Article 15 (3 Pages) * Urinalysis Results (6 Pages) * Senator Letter (6 Pages) * Traumatic Brain Injury (TBI) (26 pages) 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 1. 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 his discharge for accusations of smoking hashish was unjust because he did not smoke hashish. While deployed to Afghanistan, there was a criminal investigation command (CID) investigation in July 2011. He was asked to write a statement about what he knew of Soldiers in the unit using drugs. He wrote that he did not know anything. He was sent on leave to the United States for two weeks. When he returned to Afghanistan he was told that there were two statements against him and CID brought him in to write another statement because people were accusing him of doing drugs. At this time he asked for a lawyer. He was given the opportunity to talk to a defense attorney and was told to get statements from other people stating that he did not smoke hash. A week later his attached unit started Article 15 procedures on him. He had no idea what the charges were. He spoke to a defense attorney and was told not to ask for a court martial because the unit had too much evidence against him and he would go to jail. Everyone he asked to write a statement on his behalf, told him "command sergeant major told us not to get involved." No one wrote a statement. He appealed his Article 15 and punishment. He provided a letter from his first sergeant (1SG) stating he was negative on all his urinalyses. The 1SG’s letter was missing from the discharge packet that was given to him. He was denied any relief of the Article 15 or punishment. He went to Senator CM for help. The general decided to drop one of the charges due to lack of evidence. His unit sent him back to the U.S. to be processed out of the Army for misconduct and drug abuse. He feels an unjust was done because during the time frame that the Army was accusing him of doing drugs, he was at the TBI unit for observation due to his vehicle being hit by an improvised explosive device. 3. The applicant provided his discharge packet. His online application listed the below documents, however the documents were not attached: * Article 15 * Urinalysis Results * Senator Letter * TBI 4. With respect to the CAB, the applicant's request is premature. a. Paragraph 2-5 of Army Regulation (AR) 15-185 (Army Board for Correction of Military Records), the regulation under which this Board operates, states the Board will not consider any application if it determines that the applicant has not exhausted all available administrative remedies. There is no evidence that the applicant submitted an application for award of the Combat Action Badge to the Commander, U.S. Army Human Resources Command, ATTN: Veterans Services, 1600 Spearhead Division Avenue, Fort Knox, KY 40121-5743, and was denied this award. a. b. The CAB may be requested by letter with the following supporting documents: * assignment, attachment, or operational control orders * a copy of the Soldier's Officer or Enlisted Record Brief * a copy of the chain of command endorsement * a one-page narrative description of the qualifying incident * a certified copy of the DD Form 214 * any other supporting documentation c. The request for the CAB will not be further discussed in this Record of Proceedings. 5. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 1 October 2009. He enlisted for 3 years and 26 weeks with an $8,000 cash bonus in accordance with (IAW) Headquarters, Department of the Army, DAPE-MPA, Enlisted Incentive Program effective 1 May 2009. His DA Form 3286 (Statement for Enlistment - U.S. Army Enlistment Program) stated: Failure to complete his initial term of service in the incentivized military occupational specialty due to his own misconduct, his bonus would be forfeited and any unearned amount would be refunded, this includes the Airborne or Army Civilian Acquired Skills Program bonus IAW AR 601-280 (The Army Retention Program: Personnel Procurement). If his bonus contains monetary compensation for a Higrad or seasonal bonus, it will not be subject to recoupment as long as he remains in the Army and completes his first term of contracted Service. b. He held military occupational specialty 31B (Military Police). He served in Afghanistan from 6 January 2011 to 17 November 2011. c. On 26 September 2011, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of military Justice for wrongfully using hashish, a scheduled I controlled substance. His punishment consisted of a reduction to private (PVT)/E-1, forfeiture of $733.00 pay per month for 2 months, and extra duty and restriction. This Article 15 is not filed in his records. d. On 26 October 2011, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), by reason of misconduct-abuse of illegal drugs, for wrongfully using hashish, a schedule I controlled substance on divers occasions. The unit commander recommended a general, under honorable conditions discharge. He was advised of his rights. a. e. On 26 October 2011, he acknowledged receipt of the company commander’s decision to recommend him for separation. On 31 October 2011, the applicant consulted with legal counsel, was advised of the impact of the discharge action, and did not submit a statement in his own behalf. He acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He also acknowledged that as a result of a discharge under other than honorable conditions he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He also understands that if he receives a discharge which is less than honorable, he may apply to the Army Discharge Review Board and/or the Army Board for the Correction of Military Records to upgrade his discharge; however, he realizes that consideration by either board does not imply that his discharge would be upgraded. f. On 31 October 2011, the applicant's commander recommended the applicant be separated under the provisions of AR 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, paragraph 14-12c (2), misconduct and abuse of illegal drugs. g. On 1 November 2011, the applicant's intermediate commander recommended approval for the applicant to be separated from service characterized as general under honorable conditions under the provisions of AR 635-200, chapter 14, paragraph 14-12c (2) prior to his expiration of his term of service. The intermediate commander also recommended that the applicant not be transferred to the Individual Ready Reserve (IRR). h. On 13 November 2011, the brigade judge advocate, reviewed the separation packet and deemed it legally sufficient. He informed the separation authority of the actions he could take. i. On 13 November 2011, the separation authority approved the request for discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c (2). In addition, he directed the applicant be separated prior to the expiration of his term of service with a general discharge and not be transferred to the IRR. j. The applicant was discharged from active duty on 13 March 2012. He was discharged under the provisions of AR 635-200, paragraph 14-12c (2), with a general, under honorable conditions characterization of service. He completed 2 years, 5 months, and 13 days of active service. His DD Form 214 shows in: * Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) PV1 and E01 * Block 12b (Separation Date this Period) 2012-03-13 * Block 12c (Net Active Service this Period) 0002-05-13 * Block 12i (Effective Date of Pay Grade) 2011-09-26 * * Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Afghanistan campaign Medal with campaign star, Purple Herat, NATO Medal, national Defense Service Medal, and Army Service Ribbon * Block 18 (Remarks), the entry "Member has not completed first term of service" and "Continuous honorable active service 20091001-20110814" * Block 23 (Type of Separation) – Discharge * Block 24 (Character of Service) – Under Honorable Conditions (General) * Block 25 (Separation Authority) – AR 635-200, paragraph 14-12c (2) * Block 26 (Separation Code) – JKK * Block 27 (Reentry Code) – 4 * Block 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) k. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 17 July 2012. On 28 December 2012, the ADRB determined the discharge was both proper and equitable and voted to deny relief. 6. By regulation, AR 635-200, action will be taken to separate a member for misconduct such as commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 7. In reaching its determination, the Board can consider the applicant’s petition and his service record IAW the published equity, injustice, or clemency determination guidance. 8. By regulation (AR 635-8), the DD Form 214 will be annotated as follows: a. Blocks 4a and 4, enter active duty grade or rank and pay grade at time of separation from Enlisted Record Brief. Additionally, for Block 12i (Effective Date of Pay Grade), from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade. b. Block 12, for the record of service, for the Separation Date This Period, enter the Soldier’s transition date. For the Net Active Service This Period, enter the amount of service this period, computed by subtracting item 12a from 12b. c. Block 18, one of the mandatory entries is if Soldier has or has not completed first full term of service. To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment contract and any extensions to those initial enlistment documents and compare the term of enlistment to the net service in block 12c of the DD Form 214. If Soldier has completed or exceeded the initial enlistment, enter “HAS.” If block 12c of the DD Form 214 is less than the Soldier’s commitment, enter “HAS NOT.” a. d. Block 23, for type of Separation, enter the appropriate term listed in AR 635-5. e. Block 24, for the character of service, characterization or description of service is determined by directives authorizing separation. f. Block 25, for the separation authority, obtain correct entry from regulatory or directives authorizing the separation. g. Block 26, for the separation code, obtain correct entry from AR 635–5–1 (Separation Program Designator (SPD) Codes), which provides the corresponding SPD code for the regulatory authority and reason for separation. h. Block 27, for the RE Code, AR 601–210 (Active and Reserve Components Enlistment Program) determines RA and U.S. Army Reserves (USAR) reentry eligibility and provides regulatory guidance on the RE codes. i. Block 28, The Narrative Reason for Separation is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1. BOARD DISCUSSION: After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board found insufficient evidence to show there was an error or injustice relating to his administrative separation, the reduction in rank as it relates to that separation and all pay and allowance adjustments that occurred as a result of the discharge. Additionally, as to the Combat Action Badge request, the Board notes that the request is premature and that he proper course of action for such a request is for the applicant to apply first to the Human Resources Command, prior to asking this Board for a decision. 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. Prior to closing the case, the Board noted the administrative note below from the analyst of record and recommended that noted change be corrected to more accurately depict the military service of the applicant. 5/20/2019 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s service records shows he is eligible for awards not listed on his DD Form 214. As a result, amend his DD Form 214 to show in item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons awarded or authorized) Meritorious Unit Commendation. 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. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) in effect at the time, 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 misconduct. b. Paragraph 3-7a (Honorable Discharge) An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. c. Paragraph 3-7b (General Discharge) 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. d. The separation reason in all separations authorized by paragraph 14-12c (2) will be “misconduct-abuse of illegal drugs.” 3. AR 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for preparation of the DD Form 214. a. Blocks 4a (Grade, Rate or Rank) and 4b (Pay Grade) require the official to enter the active duty grade or rank and pay grade at time of separation from the Enlisted/Officer Record Brief. a. b. Block 12b (Separation Date This Period), the Soldier’s transition date. This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for makeup of lost time, or retained on active duty for the convenience of the Government. c. Block 12c (Net Active Service This Period), amount of service this period, computed by subtracting item 12a from 12b. d. Block 12i (Effective Date of Pay Grade), from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade. e. Block 18 (Remarks) Mandatory entry: “SOLDIER (HAS) OR (HAS NOT) COMPLETED FIRST FULL TERM OF SERVICE.” This information assists the State in determining eligibility for unemployment compensation entitlement. The following guidance will help determine which entry to use: (1) To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment contract and any extensions to those initial enlistment documents and compare the term of enlistment to the net service in block 12c of the DD Form 214. If Soldier has completed or exceeded the initial enlistment, enter “HAS.” If block 12c of the DD Form 214 is less than the Soldier’s commitment, enter “HAS NOT.” (2) Routinely, a Regular Army Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service. However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract. A prior service enlistee is considered to be on a second term of military service, even if that Soldier fails to complete the current term of service, the appropriate entry is “HAS.” f. Block 23 (Type of Separation), enter the appropriate term listed below: * Release from active duty * Discharge * Retirement * Release from active duty and order to active duty in another status * Release from Active Duty Training (ADT) * Release from custody and control of the Army * Release from ADT and discharge from the Reserve of the Army and return to the Army National Guard g. Block 24 (Character of Service), correct entry is vital since it affects a soldiers’ eligibility for post–service benefits. Characterization or description of service is determined by directives authorizing separation. Characterization or description of a. service is determined by directives authorizing separation. For a soldier being released from custody and control of the Army due to a void or voided enlistment, enter “hyphens.” Otherwise, the entry must be one of the following: * Honorable * Under Honorable Conditions (General) * Under Other Than Honorable Conditions * Bad Conduct * Dishonorable * Uncharacterized h. Block 25 (Separation Authority), obtain correct entry from regulatory or directives authorizing the separation. i. Block 28 (Narrative Reason for Separation - This is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1. 4. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for types of separation from active duty. The "JKK" SPD code is the correct code for Soldiers separating under paragraph 14-12c (2) of AR 635-200 by reason of abuse of illegal drugs. 5. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the RA, the USAR and the Army National Guard unless otherwise specified. Table 3-1 lists the U.S. Army RE eligibility 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-2 is no longer used, effective 1995. c. 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. d. RE-4 applies to Soldiers separated from last period of service with a nonwaiverable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation, or separated for any reason (except length of service retirement) with 18 or more years active federal service. Ineligible for enlistment. a. 6. AR 600-8-22 (Military Awards), as 18 September 2001 the combat action badge may be awarded to any Soldier. a. Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized. b. Soldier must be personally present and actively engaging or being engaged by the enemy, and performing satisfactorily IAW the prescribed rules of engagement. c. Soldier must be assigned or attached to a unit that would qualify the Soldier for the combat infantry badge/combat medical badge For example, an 11B assigned to Corps staff is eligible for award of the CAB. However, an 11B assigned to an infantry battalion is not eligible for award of the CAB. 7. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 8. 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 based on 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.