ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170017536 APPLICANT REQUESTS: * an upgrade of his general discharge to an honorable discharge * correction of the Reentry (RE) Code and separation code (SPD) shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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: a. It’s been over 19 years since he was discharged. He was never counseled on the type of discharge he was given at the time he was released, nor was he ever told that he could have appealed it until recently. He requests the Board correct his DD Form 214 and give him an honorable discharge and change his SPD code. He made one mistake and it has cost him dearly. He does not feel that he should continue to wear this stigma anymore. He was released from service extremely fast, each and every time he would ask questions as to his discharge he was always told don’t worry about it now, it will be explained at a later date which never happened for him. b. He has taken ownership of what happened back then. He is requesting that the Army upgrade his discharge and give him a clean DD Form 214 to move forward with his life. He just found out while talking to some veterans about his type of discharge and what the meaning of his separation code meant. No one explained to him if they had he would have fought to have them fix then. a. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 15 May 1996. b. On 5 December 1997, he accepted nonjudicial punishment for wrongfully use of cocaine on or between 26 October 1997 and 26 November 1997. His punishment consisted of reduction to private/E-1, forfeiture of $450.00 pay per month for 2 months (suspended), and extra duty and restriction c. On 21 January 1998, his immediate commander notified the applicant of initiation of separation action under the provisions of Chapter 14, Paragraph 14-12(c), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), by reason of misconduct - commission of a serious offense for the use of an illegal substance, cocaine. He acknowledged receipt on the same date. d. On 22 January 1998, he consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He elected not to submit a statement in his own behalf. He acknowledged: e. His immediate command recommended approval of the separation with a general, under honorable conditions discharge and the intermediate commander recommended approval of the separation with a general, under honorable conditions discharge. He was barred from the installation. f. On 23 January 1998, the separation authority approved the applicant’s discharge under the provisions of paragraph 14-12c of AR 635-200 for commission of a serious offense with the issuance of a General Discharge Certificate. g. The applicant was discharged on 18 February 1998, with a general, under honorable conditions characterization of service. His DD Form 214 shows his Separation Code JKQ and RE Code 3. It also shows he completed 1 year, 9 months, and 4 days of active service. He was awarded or authorized: * Armed Forces Expeditionary Medal * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar * Parachutist Qualification Badge 4. By regulation action may be taken to separate Soldiers for minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a 1. Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 5. By regulation (AR 635-5-1), Soldiers separated under the provisions of AR 635-200 for a pattern of misconduct are assigned Separation Code JKQ. This Separation Code has a corresponding RE Code of 3. 6. 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 there is insufficient evidence to grant relief. The applicant’s contentions 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 did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's discharge characterization, and the separation and reentry codes were warranted as a result of the misconduct. 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. 5/31/2019 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. 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, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an (Honorable Discharge) is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’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. b. Chapter 14 of that same regulation establishes policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was unlikely to succeed. A discharge under other than honorable conditions was normally appropriate for a member discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 3. 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 JKQ is the 1. appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12(c), due to misconduct (pattern of misconduct). 4. The SPD/RE Code Cross Reference Table, in effect at the time of his discharge, stipulated that an RE-3 code would be assigned to members separated under these provisions with an SPD code of JKQ. 5. 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: * 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 * 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 6. 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. //NOTHING FOLLOWS//