IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20170004027 APPLICANT REQUESTS: The applicant requests his under honorable conditions (general) discharge be upgraded to honorable and his narrative reason for separation and separation code be changed to mean something other than absent without leave (AWOL). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Driver License * Statements written in his own behalf (x2) * Statement of Support * Certificates of Live Birth * High School Diploma * Enlistment Contract * Joint Custody Agreement * Child Support Agreement * Pictures of him and his family (x8) 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 he needs a second chance. It was his fault that he did not go to the Department of Veterans Affairs (VA) within 6 months of his discharge. He would not need a waiver to reenlist, had he gone to the VA earlier. He was on very good terms with his unit when he was discharged. He is willing to do whatever it takes to get back into the Army. He completed a waiver packet, but it has not been approved. He does not believe he was separated for being AWOL, because he was given the option to stay in and reenlist. 3. The applicant provides two personal statements in which he indicates: a. He enlisted in the United States Army in October 2011 and served in military occupational specialty 11C (Indirect Fire Infantryman). In 2013, he was discharged under honorable conditions with a general discharge. He was assigned a separation code of JKD and a Reenlistment Eligibility (RE) code of 3. When he was in the process of getting discharged he was told that he could go to the VA after 6 months to have his discharge upgraded. Now, he understands the only way he can get an upgrade is by writing directly to the Army Discharge Review Board or to the Army Board for Correction of Military Records. He would be more than happy to meet with the Board if that is allowed. He is now a father, and he wants to serve his country and be the best role model that he can for his son. When he got out he had every intention of someday reenlisting, but he did not know it would be such a process. He knows he made a mistake, he has fixed it and now he wants nothing more than a second chance to be a Soldier. He states he sent every piece of paper that he has from his first enlistment. If he can get his discharge upgraded he would not need a waiver. b. He grew up in the small town of Reed City, Ml. As an average teenager, he played sports, basketball, and baseball mostly, and he really wasn't big on school and started thinking about the military in eighth grade. In 2011, he graduated with a 3.0 grade point average and started thinking about joining the military. Finally he decided to obtain more information at the end of his junior year. After looking at the branches of service he discovered the Army was the best fit for him. Graduating basic was the proudest moment of his life. After basic, he got orders for Ft. Riley, KS. He loved his job, and the other Soldiers in his unit. Additionally, he states: (1) After about a year, he started missing being able to see his family regularly. One of his brothers was graduating high school, his mother was pregnant with her fiancé, and his biological father was incarcerated when he was five months old. So being away he felt he was missing everything after going home on a four-day weekend. He decided to stay home longer not knowing the consequences. (2) His commander and platoon sergeant called him and asked where he was and he told them the truth. He admitted that he was scared and he regretted leaving. They explained to him what could happen and asked him what he was going to do. He stated he wanted to turn himself in and go back to his unit to do things right. (3) He knew he had made a mistake. But he wasn't a bad Soldier, he qualified well in training, did well with physical training, and was never late. When he got back, there was a new chain of command coming in with a new first sergeant. It was early September, and he had a lot of explaining to do. He did everything that he could to make things right. Stayed afterward to clean the company building, showed up to physical training early just to greet the commander every morning, went to the field just to take the guard shifts so the other Soldiers didn't have to. (4) One day his first sergeant asked him to extend/reenlist. He thought on it, but decided to go home and be with his family. Instead of leaving 2 months after he got back and receiving an "other than honorable conditions discharge," he stayed over 9 months, doing everything he could to make up for what had happened. (5) He processed out and left his unit shaking everyone's hand, on good terms. He has grown-up and matured a lot since he made that choice. He has a fiancé who is about to graduate from Ferris State University with a Bachelor's Degree in Elementary Education, and mostly importantly a 1 year old son. Reenlisting in the Army will help him be the father and someday husband that he need to be for his family. He wants his family to look up to him. He wants to be a positive role model. Becoming a dad can really make a man grow up quick. He keeps trying to work normal civilian jobs, construction mostly but it's not enough. The Army is the best thing that has ever happened to him, next to his son being born. 4. On 7 April 2011, at age 17, the applicant enlisted in the U.S. Army Reserve with his mother’s consent and entered the delayed entry program (DEP). On 25 October 2011, at age 18, he was discharged from the DEP and entered the Regular Army for 3 years and 18 weeks, in pay grade E-1. 5. The available evidence shows the applicant left his unit at Fort Riley, in an AWOL status on 20 June 2012 and he was dropped from Army rolls on 20 July 2012 and was carried in a desertion status until he surrendered and was returned to military control on 19 September 2012. He surrendered at the “Osce LA, CO Sheriff’s Department” and he was returned to military control and transferred to his unit at Fort Riley. 6. The applicant's record does not contain the nonjudicial punishment (NJP) record that he received for the aforementioned AWOL offense. Nor does it contain all of the facts and circumstances surrounding the discharge process, however, it does provide: a. A Report of Mental Status Evaluation, dated 14 November 2012, showing the applicant had no psychiatric diagnosis or conditions on Axis I. He could understand and participate in administrative proceedings and could appreciated the difference between right and wrong. He was psychiatrically cleared for discharge under the provisions of chapter 14-12, Army Regulation (AR) 635-200 and for any actions deemed appropriated by his chain of command. b. DD Form 214 (Certificate of Release or Discharge from Active Duty) that was prepared at the time of separation that shows on 7 May 2013, he was separated under the provisions of chapter 14-12c, AR 635-200, with a general discharge, in pay grade E-1. He completed 1 year, 3 months, and 16 days of active military service. His awards are listed as the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. His DD Form 214 also shows his: * Narrative Reason for Separation as, Misconduct (AWOL) * Separation Code as, JKD * Reentry Code as, “3” c. Orders Number 126-0014, Headquarters 1st Infantry Division, Fort Riley, KS, confirms, the applicant was assigned to the U.S. Army Transition Point for discharge, effective 7 May 2013. d. On 21 May 2013, the applicant was issued a DD Form 215 (Correction to DD Form 214) to show his lost time was from 20 June to 19 September 2012. 7. On 28 February 2018, at Scott Air Force Base during a travel panel hearing, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB unanimously voted to deny him a change in the character of service and the reason for discharge. 8. Chapter 14 (Separation for Misconduct) 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. 9. AR 635-5-1 Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, provided 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. It identified the SPD code of "JKD" as being associated with separations under the provisions of chapter 14, AR 635-200; the required narrative reason for separation was "Misconduct-AWOL, Desertion." 10. The applicant provides pictures of him and his family, certificates of live birth, his high school diploma, enlistment contracts, joint custody agreement for his son, child support agreement, and a statement of support, in which Mr. F recommends the applicant be allowed to reenter the military. Mr. F states he served with the applicant and he was a good Soldier, he just had some personal problems that were not handled well. He knows the applicant will be an asset to the Army and he deserves a second chance. 11. Regarding the applicant’s contention that he does not believe he was separated for being AWOL, because he was given the option to stay in and reenlist. He also contends that he needs a second chance and he is willing to do whatever it takes to get back into the Army. There is no evidence available showing that he was ever offered an opportunity to stay in the military or reenlist. His separation processing documents are incomplete. However, the evidence, to include his DD Form 214 clearly shows he was discharged under the provisions of chapter 14-12c, for being AWOL from 20 June to 19 September 2012, which was commission of a serious offense. 12. Regarding his contention that he was told his discharge could be upgraded after 6 months. Even though his complete separation packet is not available. At the time of separation, he would have acknowledged he understood that he had the option of applying to the Army Discharge Review Board within that board's 15-year statute of limitations, or to the ABCMR for an upgrade of his discharge. The Board decides each case individually upon its own merits and the act of consideration was not a guarantee of an upgrade. The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. 13. The SPD code of “JKD” and the RE code of “3” are the correct codes for members separating under the provisions of paragraph 14-12c of AR 635-200 by reason of misconduct (AWOL). However, the codes are waiverable. If he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service and of the needs of the service. Those individuals are also responsible for processing RE code waivers. 14. He completed 1 years, 3 months, and 16 days of his 3 years and 18-week enlistment obligation. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, his 6 months AWOL, and the character and reason for his separation. The Board noted the facts presented above. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the general under honorable conditions character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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. 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 14 (Separation for Misconduct) 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. 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. 3. AR 635-5 (Separation Documents) prescribes policies and procedures for completion of the DD Form 214. It states, based on the specific separation authority, the source of the SPD code and narrative reason for separation was AR 635-5-1 (SPD Codes). 4. AR 635-5-1, in effect at the time, provided 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. It identified the SPD code of "JKD" as being associated with separations under the provisions of chapter 14, AR 635-200; the required narrative reason for separation was "Misconduct-AWOL, Desertion." 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) AR20170004027 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20170004027 8 ABCMR Record of Proceedings (cont) AR20170004027 7