ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 July 2019 DOCKET NUMBER: AR20170007967 APPLICANT REQUESTS: correct his DD Form 214 (Certificate or Release or Discharge from Active Duty) by: * correcting Item 24 (Character of Service) from under honorable conditions (general) to honorable * correcting Item 26 (Separation Code) from JKQ to MBK * correcting Item 28 (Narrative Reason for Separation) from misconduct to uncharacterized APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement, dated 10 February 2017 * document with self-photo, his name, and contact information * his business card * adoption and naturalization documents * GED Certificate * applicant’s copy of his service record * real estate broker license, dated 24 October 2014 * military relocation professional certification, dated 1 August 2016 * doctor’s statement, dated 16 January 2017 * four (4) character statements * U.S. Department of Justice, Federal Bureau of Investigation Fingerprints Report, dated 28 January 2017 * College Transcript, dated 10 February 2017, University of Phoenix * Business and Professional Licenses Search, dated 10 February 2017 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 in a self-authored statement: a. Serving in the United States Army was the single greatest privilege of his life. Following in the proud footsteps of his father who was an Army physician during the Vietnam War and both of his grandfathers (one served in WWII and the other served as an Army dentist). Military service runs deep within his family. He decided to continue the family tradition by enlisting in the Army as an Infantryman in the prestigious 82nd Airborne Division. The applicant states he loved being a Soldier, waking up each morning with such an overwhelming sense of pride in country, his fellow servicemen, and himself. He referenced the importance of commonality of patriotism and duty to country shared by all enabling them to come together as a single unit. The applicant states he will always be proud to have been a part of the true brotherhood. b. He states, unfortunately, he lacked the high level of maturity needed to become a truly successful Soldier when he first entered in the Army. Not long after reaching his duty station, he left a field training exercise in the middle of the night because he was homesick. He was caught shoplifting a bottle of cologne from the Fort Bragg, NC Post Exchange (PX), then later tested positive for marijuana after returning from holiday leave. He states both infractions were clear indications of childlike behavior and an individual who was not the quality of Soldier required for yesterdays and todays military. As a result, his heart is overwhelmingly broken on a daily basis at the thought of his actions and all of the people he let down. c. The applicant shares in a reflection of his time in the Army, he states, if the Army taught him anything, it was to hold your head high in the face of adversity and drive on. He states, today, he is no longer a lost 19 year old child, but a mature, goal oriented and driven young adult that’s currently a real estate broker with one of the top firms in Seattle, WA. He recently obtained the Military Relocation Professional Certification through the National Association of Realtors, which enables him to specialize in assisting military personnel and their families in their relocation process to and from the Puget Sound Area. d. The applicant states he currently holds a Bachelor of Science degree in Criminal Justice from the University of Phoenix and volunteer monthly at the Ronald McDonald house by serving dinner to families in need. He states, as of the date of his statement, he was currently training for his fourth full marathon and was looking to participate in his first triathlon. e. He states his ultimate goal is to once again serve our great country in uniform, this time as a member of the Washington National Guard. After months of communication with a local recruiter, he learned the only way he will be able to re-join is by having the current character of service, type of separation, and separation code changed on his DD Form 214. The applicant shares, sixteen years ago, as a teenager, he was unable to fill the shoes of a quality Soldier. However now at age 35, he knows he has the proven attributes required to become and maintain an excellent one. He states he owes it to his country, the military, each member of the Board, and himself the opportunity at a second chance, so that he may contribute positively in today’s Army and finish the job he swore an oath to completing so many years ago. He shares, in effect, being able to serve again would be the greatest honor of his life. 3. The applicant provides: a. A professional self-photo containing his name and contact information, along with his business card. b. A copy of his required supporting documents prior to enlistment in the Regular Army (proof of adoption, copy of his Certificate of Naturalization, GED Certificate, Standard Form 86 (Security Clearance Application), and enlistment eligibility documents). c. A copy of his service record, which includes a copy of his DD Form 214 that shows in: * item 24 (Character of Service), Under Honorable Conditions (General) * item 25 (Separation Authority) Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c * item 26 (Separation Code), JKQ * item 27 (Reentry Code), (normally abbreviated and referred to as RE code), 3 * item 28 (Narrative Reason for Separation) “Misconduct” d. A copy of his real estate broker license, issued 24 October 2014. e. A copy of his certificate upon the completion of attending the Military Relocation Professional Certification. f. A statement from his medical doctor, providing the applicant had been seen at their medical facility for many years and has not presented evidence of recreational drug use for more than 10 years. g. Four (4) Character Statements from friends and business partners stating the applicant has grown both personally and professionally, displays invaluable selflessness and willingness to help others with a demeanor and interaction with others that is genuine. The applicant is described as one who constantly pushes himself through education and hard work, is committed to growing his career in real estate, marathon training, and continuing to look for ways to serve his country. He is said to have proven himself to be a goal oriented person with passion to excel at anything he puts his mind to while keeping a positive attitude. He is said to volunteer his time to support local charity organizations, participates in marathon events to raise funds for the local children’s hospital and St. Jude Children’s Hospital. A long-time friend, who’s shared long talks with the applicant about his strong desire to return to military service, describes him as a great person to be around because he brings an optimistic attitude to everything he does. Another friend and business associate describes the applicant as positive and motivated, with an uplifting spirit who puts his friends, family, and country first. He has been witnessed inspiring in others the willingness to grow and improve and is said to display an excellent blend of professionalism, competence, compassion, and wisdom in all areas of his life and should be allowed to return to military service. h. A copy of his U.S. Department of Justice, Federal Bureau of Investigation Fingerprints Report, shows the applicant was charged with driving under the influence on 16 January 2001, by the Seattle Police Department, WA. His punishment consisted of jail confinement for 365 days (355 days were suspended) and fined $5,000 ($4,440 suspended), which both were dismissed. i. A copy of his unofficial Transcript from the University of Phoenix, that shows he completed a Bachelor of Science degree in Criminal Justice (BSCJA) on 8 April 2013. j. A copy of the results of a Washington State Licensing: License Search, dated 10 February 2017, that shows the applicant maintained a current business and professional real estate broker license at that time. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 22 February 2000. b. He accepted nonjudicial punishment (NJP) under the provisions of Article 15 on 1 February 2001 for wrongfully using marijuana and stealing a bottle of perfume (of a value of less than $100.00) from military property of the United States. His punishment consisted, in part of reduction to Private/E-1. c. The applicant's immediate commander notified him of his intent to initiate separation proceedings against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, with the recommendation that he receive a General Discharge, Certificate, for the commission of a serious offense, due to his use of marijuana and theft of the perfume from military property. His commander informed him of his right to consult legal counsel and the opportunity to submit written statements on his behalf. d. The applicant acknowledged receipt of the commander’s intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action under AR 635-200, paragraph 14-12c, for serious misconduct and testing positive for marijuana. He acknowledged his understanding of the rights available to him and the effect of any action taken by him in waiving his rights. He acknowledged the effect of his discharge on further enlistment or reenlistment. He did not provide a statement on his behalf. He also acknowledged: * he understood that he may encounter substantial prejudice in civilian life if a General (under honorable conditions) discharge was issued to him * he understood that if he received a discharge certification/character of service which is less than honorable, he could make application to the Army Discharge Review Board or ABCMR for upgrading, and he understood that an act of consideration by either board did not imply that his discharge would be upgraded e. Immediately following receipt of the applicant’s acknowledgement, his company and intermediate commanders recommended him for discharge. f. The separating authority approved the applicant's discharge, under the provisions of AR 635-200, paragraph 14-12c for the commission of a serious offense. He ordered the applicant be issued a General Discharge Certificate. g. On 2 April 2001, the applicant was discharged under the provisions of AR 635-200, paragraph 14-12c, for commission of a serious offense. His DD Form 214 shows he completed 1 year, 1 month, and 11 days of active service with no lost time, and was given a general under honorable conditions character of service. h. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized: * Army Service Ribbon * Expert Marksmanship Qualification Badge with Rifle Bar * Parachutist Badge i. His DD Form 214 also shows in: * item 24 (Character of Service), Under Honorable Conditions (General) * item 25 (Separation Authority) Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c * item 26 (Separation Code), JKQ * item 27 (Reentry Code), 3 * item 28 (Narrative Reason for Separation) “Misconduct” 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By regulation, (AR 635-200), in part states: a. Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. b. An uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. A general discharge is not authorized. 7. AR 635-5-1 (Separation Program Designator (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. a. SPD code JKQ, listed in Item 26 (Separation Code), is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 14, for misconduct. b. Soldiers are assigned SPD Code “MBK” when they are separated under the provisions of AR 635-200, chapter 4 (Completion of Required Active Service) 8. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army 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 for enlistment unless a waiver is granted. A member who desires to reenter military service should contact a local recruiter who can best advise her/him on her/his eligibility for returning to military service. Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant's RE code. 9. The SPD/RE Code Cross Reference Table in effect at the time of his discharge 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 "JKQ" has a corresponding RE Code "3", meaning enlistment waivable. The SPD Code “MBK”, for completion of required active service, has a corresponding RE Code of “1 or 3”. 10. By regulation (AR 635-5), the version of the regulation in effect at the time stated: * block 24: Character of Service. Characterization or description of service is determined by directives authorizing separation * block 26: Separation Code. Obtain the correct entry from AR 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation * 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 11. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, letters of support, and post-service achievements were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record, and agreed to upgrade his character of service to Honorable and mask his reason for separation. However, he was administratively discharged prior to his ETS, the request to change the separation code is denied. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 2 April 2001 showing his character of service “Honorable,” and his reason for separation as “Secretarial Authority.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the separation code on his DD Form 214. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b provides that 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. paragraph 3-9, in effect at the time provides, in part, an uncharacterized separation is an entry-level separation. A separation will be described as an entry-level separation if processing is initiated while a member is in entry-level status, except when characterization under other than honorable conditions is authorized by the reason for separation and is warranted by the circumstances of the case or when the Secretary of the Army, on a case-by-case basis, determines that characterization of service as honorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of duty. A general discharge is not authorized. d. Paragraph 14-12c, in part, provides Soldiers are subject to separation under the provisions of chapter 14, for the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense. An under other than honorable is an appropriate and authorized character of service for this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 3. Army Regulation 635-5-1, 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. a. SPD code JKQ, is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, chapter 14, for misconduct. b. Soldiers are assigned SPD Code “MBK” when they are separated under the provisions of AR 635-200, chapter 4 (Completion of Required Active Service) 4. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Table 3-1 included a list of the Regular Army 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 for enlistment unless a waiver is granted. 5. The SPD/RE Code Cross Reference Table in effect at the time of his discharge 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 "JPQ" has a corresponding RE code "3." The SPD Code “MBK” has a corresponding RE Code of “1 or 3”. 6. Army Regulation 635-5 (Separation Documents), chapter 2, in effect at the time, established standardized policy for preparing and distributing the DD Form 214. The purpose of the separation document is to provide the individual with documentary evidence of his or her military service. It is important that information entered on the form should be complete and accurate. Chapter 2 contained guidance for preparation of the DD Form 214. The version of the regulation in effect at the time stated: * block 24: Character of Service. Characterization or description of service is determined by directives authorizing separation * block 26: Separation Code. Obtain the correct entry from AR 635-5-1, which provides the corresponding SPD code for the regulatory authority and reason for separation * 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 7. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. 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, Boards 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. 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) AR20170007967 8 1