ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 April 2019 DOCKET NUMBER: AR20170016121 APPLICANT REQUESTS: * upgrade of his general, under honorable conditions discharge to honorable * change of narrative reason for separation from “misconduct (drug abuse)” to “miscellaneous” or “secretarial authority” * change of separation code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Counsel’s statement * 18 exhibits FACTS: 1. Counsel states: a. This request is made for reason of equity. The applicant was arrested by the Georgia State Police and charged with possession of narcotics. A discharge will be considered equitable unless, during the course of review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the Discharge Review Board (DRB) viewed in conjunction with the factors listed in Department of Defense Instruction (DODI) 1332.28 (DRB Procedures and Standards) and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance. b. Areas of consideration include, but are not limited to: quality of service, as evidenced by factors such as; service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative), awards and decorations, letters of commendation or reprimand, combat service, wounds received in action, records of promotions and demotions, level of responsibility at which the applicant served, and other acts of merit that may not have resulted in a formal recognition through an award or commendation. c. In accordance with the intent of DODI 1332.28, enclosure 4.3.1., it is respectfully submitted that the legal principle of equity requires that the applicant's discharge be upgraded to a characterization of honorable because the Army did not fully consider the quality of his three years of service prior to his unfortunate decision to use narcotics. The applicant's honorable service in the Army is evident upon examination of his military records. The applicant served nearly a year-long combat deployment as an infantryman in Iraq during Operation New Dawn and was awarded the “Army Achievement Medal”, National Defense Service Medal, Meritorious Unit Commendation, and Army Service Ribbon. d. In addition to the applicant's honorable service in the Army, he has continued to seek to better himself and learn from his mistake since being discharged. He is currently enrolled in Brookdale Community College where he is pursuing his Social Science degree (Nursing Track) with expected completion on 2018. He has also received his hazardous material (HAZMAT), firefighter, and emergency medical technician (EMT) certification from the state of New Jersey. He utilizes these newly acquired skills for continued service in his local community as both a firefighter and EMT. He hopes to become a Paramedic and is currently seeking enrollment in the Pre- Hospital Medicine Paramedic Science Program at the Jersey City Medical Center. e. Furthermore, the applicant has received four character references in support of this application. The letters speak highly of the applicant and attest to his reliability, competence, and mentorship. The letters also highlight his ability as a competent and confident leader who is compassionate and caring in dealing with his patients. He works well on a team, individually, or in leadership positions. f. The evidence provided here shows that the applicant's service was honorable for most of his three (3) year enlistment. He made an unfortunate decision that terminated his Army career after his deployment. Despite this unfortunate fact, it is undeniable that his conduct since then has showed marked improvement as a continued volunteer with a commitment to service. As a result, his service merits an honorable discharge. g. In light of the facts and circumstances provided herein, the applicant respectfully requests that his discharge be corrected to reflect an honorable characterization of service and his narrative reason for separation and separation code are corrected to show "Secretarial Authority." The applicant served honorably for the vast majority of his three-year enlistment, including his year-long deployment to Iraq. Further, the applicant's discharge is inequitable when the totality of the circumstances are examined, including his post-service accomplishments. 2. On 30 June 2009, the applicant enlisted in the Regular Army for a period of 4 years and 17 weeks. He deployed to Iraq in support of Operation New Dawn from 10 July 2010 to 10 June 2011. 3. On 5 April 2012, the applicant was arrested by the Georgia State Police and charged with possession of narcotics. 4. On 18 May 2012, he was found qualified for service and medically cleared for administrative separation. A mental status evaluation shows the applicant was psychologically cleared for chapter separation. 5. On 31 May 2012, the applicant was counseled for misconduct. He was stopped for excessive speeding and granted consent to search his vehicle. While conducting a search of the applicant’s vehicle Georgia State Police found a bag containing 85 pills in the vehicle’s glove box. The pills were determined to contain methylenedioxy- methamphetamine (MDMA), an illicit drug. He was arrested and charged with possession of a class III narcotic with intent to distribute which is a felony. The applicant was arrested only 6 hours after he had received a safety briefing from his commander informing him of the dangers and consequences associated with the use and possession of illicit drugs. 6. On 7 August 2012, his commander initiated separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), misconduct (abuse of illegal drugs). The reason for his commander’s separation action was because the applicant wrongfully possessed ecstasy. 7. On 8 August 2012, the applicant acknowledged receipt of the proposed separation action and consulted with legal counsel. He was advised of the rights available to him, the basis for the contemplated separation action for misconduct (abuse of illegal drugs) and its effects. The applicant completed his election of rights and indicated he would not submit a statement in his own behalf and that he understood he could expect to encounter substantial prejudice in civilian life if a general under honorable conditions discharge was issued to him. 8. On 29 August 2012, consistent with the chain of command recommendations, the separation authority approved the applicant’s discharge by reason of misconduct (abuse of illegal drugs, and directed that his service be characterized as under honorable conditions (general). 9. On 7 September 2012, the applicant was discharged accordingly. He completed 3 years, 2 months and 8 days of net active service. His DD Form 214 shows: * Character of Service – under honorable conditions (general) * Separation Authority – AR 635-200, paragraph 14-12c(2) * Separation Code (SPD) – JKK * Narrative Reason for Separation – misconduct (drug abuse) * He was awarded or authorized the – * Army Commendation Medal * Meritorious Unit Commendation * National Defense Service Medal * Army Service Medal 10. On 18 May 2015, the applicant personally appeared before the Army Discharge Review Board (ADRB) requesting to upgrade his discharge to honorable, and to change the narrative reason for his discharge. The ADRB determined that he was properly and equitably discharged. His request was denied. 11. In May 2016, the Macon Judicial Court in the interest of justice dismissed the charges against the applicant of violating the Georgia Controlled Substance Act. 12. On 10 November 2017, his attorney BS stated in part: a. After a thorough review of the evidence in the case, it was his opinion that the perpetrator in this case was Mr. M and that the applicant was charged simply because contraband was found in a vehicle he was operating. Given the applicant’s persistent claims of innocence, and the defenses that they intended to raise, they were preparing to try the applicant's case to a jury. In one of his last discussions with the prosecutor handling the applicant's case, he agreed to dismiss the case against him. Attached is a copy of the “Nolle Pross” (dismissal) that was entered. b. His research of the Bibb County Superior Court Clerk's online records indicated that Mr. M, the passenger sitting in closest proximity to the contraband, entered a plea of guilty to the charges in April of 2016. In exchange for his plea of guilty, it appears that Mr. M was sentenced to a term of probation. c. While Georgia law on constructive possession authorizes the arrest of anyone inside the vehicle for possession of contraband, it is the final disposition of the case that is most important. Here, the judicial system properly recognized that the applicant's mere proximity to contraband is not, standing alone, a criminal offense. The State's ultimate dismissal of the charges against the applicant served the interest of justice. For purposes of criminal history, it should be noted that the applicant has no conviction whatsoever on his record arising from this case. d. The attorney hopes that this letter provides some additional information on the applicant's case and that it tells "the rest of the story" as it pertains to this unfortunate situation. It was his pleasure representing the applicant in this matter. He is a very impressive young man and the attorney hopes that the Board will consider the circumstances the he has outlined, and not just the charge that was brought. 13. Army Regulation 635-200, chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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 being absent without leave. The regulation also provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate. 14. Army Regulation 635-5-1 (Personnel Separations - SPD) defines the separation codes used on the DD Form 214. The regulation shows the SPD code of JKK (misconduct, drug abuse) is used for involuntary discharges done under the provisions of Army Regulation 635-200. 15. In reaching its determination, the Board should consider counsel’s petition, exhibits, and the applicant’s service record, and post-service achievements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The Board agreed that the applicant’s case warrants clemency in that the applicant served honorably in wartime for one year and the applicant’s post-service achievements have mitigated the single instance of misconduct resulting in the discharge characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as honorable (item 24) , a separation code of JND (item 26) , and the narrative reason as secretarial authority (item 28). 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): Not Applicable REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include 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 being absent 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. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptance conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate. 2. Army Regulation 635-5-1 (Personnel Separations - SPD) defines the separation codes used on the DD Form 214. The regulation shows the SPD code of JKK (misconduct, drug abuse) is used for involuntary discharges done under the provisions of Army Regulation 635-200, paragraph 14-12c(2). 3. The SPD/RE Code Cross Reference Table 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 of "JKD" has a corresponding RE code of 3. 4. 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, 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. 5. DODI 1332.28 (DRB Procedures and Standards) issues uniform procedures and standards for the review of discharges. It contains guidance that states: a. The objective of a discharge review is to examine the propriety and equity of the applicant's discharge. The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors shall be established that require automatic change or denial of a change in discharge. In each case, the DRB or the Secretary of the Military Department concerned shall give full, fair, and impartial considerations to all applicable factors before reaching a decision. b. In the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in the paragraph of equity and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.