ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  9 July 2019

	DOCKET NUMBER:  AR20170009614


APPLICANT REQUESTS:  

* an upgrade of his general, under honorable condition discharge to honorable
* an upgrade of his reentry (RE) code to allow reentry into the service

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Self-Authored Statement
* Character Statement, Mr. M.W.G, dated 3 November 2016
* Letter of Recommendation, SFC A.R., dated 10 January 2017
* Letter of Support, Mr. W.G.

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 (ABCMR) 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.  On or about May 2013, he received a letter with his results from the Army Discharge Review Board (ADRB).  Like anyone else requesting a discharge upgrade, he was hoping for the best.  However, when he read the letter he was disappointed to see his request was denied.  A few months after his discharge, he was frustrated and depressed with the outcome and began blaming the Army and other people for his mistake.  After a span of time and some thought, in 2017 he has had an opportunity to think it over and better himself as an individual.  Not only did he compromise the trust and confidence place in a Soldier, he brought discredit to the U.S. Army.  It is unfortunate we cannot return to the past to correct our mistakes.

	b.  He is asking the Board to please consider with an open heart that he has truly changed.  In his self-authored statement, he admits to not properly researching the “double jeopardy” issue and was wrong for using it in an attempt to upgrade his discharge.  Since his growth as an individual, he doesn’t believe the one mistake made while serving his country warranted his release from the military.  His discharge for use of marijuana was too harsh.

	c.  He has held three different jobs in the oilfield and with each one he has learned, matured and gained a better understanding of professionalism.  He earned his Class A and B Commercial Driver Licenses (CDL).  He has maintained steady employment since 2014.  Through the various jobs and positions, he has had to remain drug-free since he is randomly tested just as if he was still in the military. He has become the man the Army would proudly call a Soldier.  He is loyal to himself, others and his employer.  He fulfills his duties at home and work.  His level of respect for himself and the laws of the land has increased.  He is selfless in is his service to the community.  His honor of self and country has grown and his integrity is unquestionable.  His personal courage is on display through this application for upgrade of his discharge.  In closing, his one mistake cost him the chance to do good for his country.  The Board should consider that he did not have a pattern of misconduct while serving in the military.

3.  The applicant provides letters of support from:

	a.  Mr. M.W.G. served as the applicant’s supervisor.  The applicant was always willing to all necessary to get the mission accomplished.  His loyalty and integrity were above reproach.  He was viewed as one of the most motivated and dedicated Soldiers in his section.  His efforts never went unnoticed and he played an integral part to the mission.  He considers him an asset to the Army and would gladly serve with him again.

	b.  SFC A.R. is proudly serving in the U.S. Army.  He fully supports an upgrade of the applicant’s discharge and reentry code.  He states the applicant was a young, immature, and associating himself with the wrong group of Soldiers.  He made the costly mistake, paid the ultimate price through loss of most military and veteran benefits.  He has been resilient since his discharge, earning a respectable job and living a good, honest life.  Although he has moved on with life, he has not felt the fulfilment and joy felt while in uniform.  He is functioning member of society, drug free and maintains a non-existent criminal record.  The applicant has paid the price, please give strong consideration to upgrading his discharge and allowing him reentry into the military.

	c.  Mr. W.G. serves as the applicant’s branch manager.  He states the applicant is a very respectful and energetic kind of guy.  He is always willing to take on any task despite the difficulty at any time of the day.  As a Class A CDL truck driver, the applicant never failed a mission regardless if he was on duty, on call or off duty.  He has accomplished all missions without a single safety violation or Department of Transportation (DOT) violation.  Although he is no longer in the military, he can respectfully say the applicant is nothing but a great Soldier/worker for LTR.
4.  The applicant service records shows:

	a.  He enlisted in the Regular Army on 8 June 2010.

	b.  On 24 October 2011, he received a DA Form 4856 (Developmental Counseling Form) for alleged possession of marijuana and possible use of illegal substances.

	c.  On 18 November 2011, he received nonjudicial punishment for wrongful use of marijuana.  His punishment consisted, in part, of reduction to private/E-1.

	d.  On 17 January 2012, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14-12c (2), in effect at the time, for misconduct – abuse of illegal drugs.  The commander indicated that his recommendation is based on the applicant’s positive test for marijuana, a schedule 1 controlled substance.

	e.  On 17 January 2012, the applicant acknowledged receipt of the commander’s intent to separate him, subsequently, he consulted with legal counsel and did not submit statements on his own behalf.  He acknowledged:

* he may expect to encounter substantial prejudice in civilian life because of a general discharge under honorable conditions
* he may ineligible for many or all benefits administered by the Veterans Administration, and he may be deprived of rights and benefits as a Veteran under both Federal and State laws
* he may apply to the Army Discharge Review Board or ABCMR for upgrading if he receive a discharge/character of service that is less than honorable

	f.  Subsequent to the applicant’s acknowledgment, the immediate commander initiated separation action against him for misconduct – abuse of illegal drugs.  The chain of command recommended approval.

	g.  On 27 January 2012, consistent with the chain of command’s recommendations, the separation authority approved the discharge under provisions of chapter 14-12c (2), by reason of misconduct – abuse of illegal drugs, and ordered his service be characterized as under honorable conditions (general), and he be issued a General Discharge Certificate. 

	h.  On 21 February 2012, the applicant was discharged from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 paragraph 14-12c (2) of AR 635-200 and was issued a General Discharge Certificate.  He completed 1 year, 8 months and 14 days of active service.  It also shows:

* he was awarded or authorized Army Service Ribbon, National Defense Service Medal, and Global War on Terrorism Service Medal
* he was assigned Separation Code JKK and RE Code 4

5.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his character of service and reentry code.  After considering the evidence, the ADRB denied his request.

6.  By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed.  A discharge under other than honorable conditions is appropriate for a member discharged under AR 635-200, Chapter 14-12c.

7.  By regulation (AR 635-200), Soldiers separating under chapter 14 for drug use are assigned Separation Code JKK.  The RE Code associated with this Separation Code 
is RE-4.

8.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined some relief is warranted.  The applicant’s contentions, letters of support and post-service achievement were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He was discharged for substance abuse and was provided an Under Honorable Conditions (General) characterization of service.  He accepts responsibility for actions and was remorse during the application process.  The Board agreed that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel, in addition to the applicant having a relatively short term of honorable service completed prior to the misconduct.  However, the Board also agreed to grant relief by change the reentry code to RE-3, which would allow for a waiver to reenter the service.


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 amending Block 27 (Reentry Code) on his DD Form 214 for the period ending 21 February 2012 to show “3.”

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 granting relief with an Honorable character of service.
	 
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 (AR) 635-200, (Personnel Separations – Enlisted Personnel), in effect at the time, provides for separation of enlisted personnel.

	a.  Paragraph 3-7a (Honorable Discharge) states 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 characterization would be clearly in appropriate.

	b.  Paragraph 3-7b (General Discharge) 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 14, 12c of this regulation provides procedures for separating personnel for a pattern of misconduct.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

4.  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.  The SPD code JKK is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, due to misconduct (serious offense-drugs).  
5.  AR 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes.

* An RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* An RE code 3 applies to persons who are not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable
* An RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification

6.  The SPD/RE Code Cross Reference Table, dated June 2006, stipulated that an RE-4 code would be assigned to members separated under these provisions with an SPD code of JKK.
//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20170009614


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