ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 July 2019 DOCKET NUMBER: AR20170017903 APPLICANT REQUESTS: * change in her character of service from uncharacterized to under honorable conditions (General) * change of her reentry (RE) code * change of her separation code JKD to JKH * change of her narrative reason for separation * personal appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 she believes there was an error on her DD Form 214 and it should read as follows: (Type of Separation – Discharge), (Character of Service- General under Honorable Conditions), (SPN Code – JKH), (Narrative Reason for Separation- Hardship). The separation code “JKD” represents absent without leave (AWOL), desertion. When she attempted to reenlist approximately in 2003 the recruiter informed her of the code JKD representing AWOL, desertion. This is clearly in error as she was neither AWOL nor did she desert. Dates of time lost during this period states “none.” Her signature in block 21 (Signature of Member Being Separated) indicates she was there in person to sign her DD Form 214. At no point in her brief military stay was she AWOL. This is a clear and unmistakable error. Her narrative reason for discharge “misconduct” is also in error. She was not discharged due to poor performance, or conduct. She was discharged for self-identified elimination from training due to hardship outlined in her attached personal statement. 3. The applicant provides a self-authored statement: a. She was married at that time and had a five-year old child. When she left home for training she left her son in the care of his father. That proved to be a mistake as her ex-husband did not take proper care of her son and this led to her untimely discharge from the Army. b. She became aware of the declining care situation when she went for Christmas prior to advanced individual training (AIT). She discovered her ex-husband had changed her child’s school without her knowledge or consent and he was dirty and inappropriately dressed. She discovered her husband was having an affair (they were in good terms at the time of her enlistment) and he was cohabitating with his new girlfriend and her child. c. With permission from her chain of command she was able to extend her leave by one day beyond the original leave dates to attend to issues at home. After she returned to Fort Jackson, SC, for AIT, her ex-husband and his mistress had parted ways and he relocated with his son to a friend’s house where they were both living in a mold infested basement. This caused severe health issues for her child. She attempted to contact child protective services, but her ability to handle this situation was extremely limited as she was a private/E-1 in AIT. Her financial resources were limited, and this was a time when access to computers, cell phones, etc. was not as readily available. d. She had her parents intervene on her behalf, but they were not legal guardians and were limited in their ability to assist. Despite the imploding situation at home she was able to train and was within three-weeks of completing AIT. Ultimately, the situation at home became overwhelming and she attempted to get assistance through her chain of command. Unfortunately, she was not experienced enough at that time to navigate the situation. e. Her son’s welfare was at stake and she needed to get to him as quickly as possible. She reached out to her recruiter for advice, and he stated she could “self-eliminate” from training. She notified her chain of command of her intentions, this obviously did not go well. After a series of undesirable conversations she was ultimately administratively discharged. At no point was she AWOL. She withdrew from training but never left Fort Jackson or her unit. Had she known then what she knows now she would have handled things differently, but she was in an urgent situation. f. She was informed at her discharge she would be able to reenlist after two years with a RE waiver (her RE code was 3). In 2003 she went to the Army recruiter to try to enlist. It was at this time her recruiter informed her the JKD separation code represented “AWOL, desertion” and the RE code waiver was denied. Due to life circumstances and the inability to reenlist she did not pursue a discharge upgrade at that time. She thoroughly enjoyed her time in the Army, and always regretted not having the opportunity to continue her career. Although, her time in the Army was brief, the skills she learned have aided her immeasurably. She is now a registered nurse with an impeccable work ethic. She is pursuing this discharge upgrade in hopes of serving the in the Army Reserves in that capacity. 4. A review of the applicant’s service records shows: a. She enlisted in the Regular Army on 15 September 2000. b. On 9 February 2001, she accepted nonjudicial punishment (NJP) for wrongfully using of marijuana on or between 6 December 2000 and 4 January 2001. c. On unknown date, the applicant’s immediate commander notified her of his intent to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12(c) for wrongful use of marijuana, a controlled substance between on or about 6 December 2000 and on or about 4 January 2001. The applicant acknowledged receipt of the commander's intent to separate her on 23 February 2001. d. On an unknown date, the applicant waived counsel. She also acknowledged the basis for the contemplated separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her. She elected not to submit a statement in her own behalf; and the following: * she may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to her * if she received a discharge characterization of less than honorable, she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but she understood that an act of consideration by either board did not imply her discharge would be upgraded * she understood she would not be eligible to apply for enlistment in the United States Army for a period of two years after discharge e. Her immediate commander initiated the separation action on an unknown date. On 26 February 2001, the intermediate commander recommended approval of the separation under provisions of AR 635-200, paragraph 14-12c for commission of a serious offense with the issuance of an uncharacterized entry level separation. f. On 1 March 2001, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12c for commission of a serious offense with an uncharacterized entry level separation. g. Her record is void of any documentation pertaining to a hardship discharge. However, her record shows her acknowledgement with misconduct as the reason for separation. h. On 7 March 2001, she was discharged under the provisions of AR 635-200, paragraph 14-12c(1) by reason of misconduct, with a character of service of uncharacterized. Her DD Form 214 shows she completed 5 months, and 23 days of creditable active service. Additionally, it shows in: * Item 23 (Type of Separation) - Discharge * Item 24 (Character of Service) - Uncharacterized * Item 25 (Separation Authority) – AR 635-200 paragraph 14-12c (1) * Item 26 (Separation Code) - JKD * Item 27 (Reentry Code) – 3 * Item 28 (Narrative Reason for Separation) - Misconduct i. 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. 5. By regulation AR 635-200 action may be taken to separate Soldiers under provisions of chapter 14 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 Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. The service of Soldiers specified in this paragraph who are in entry level status will be uncharacterized, even though they have completed their initial active duty training (IADT). The Army considers entry level status as the first 180 days of continuous active military service. 6. By regulation (AR 635-5-1), Soldiers separated under the provisions of AR 635-200 for misconduct are assigned Separation Code JKD. This Separation Code has a corresponding RE Code of 3. 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 unless a waiver is granted. 7. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 8. In reaching its determination, the Board can consider the applicant’s petition and her 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 that they could reach a fair and equitable decision in the case without a personal appearance by the applicant. Additionally, the Board concluded there is insufficient evidence to grant relief. The governing regulation provides that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. As such, her DD Form 214 properly shows her service as uncharacterized. An uncharacterized discharge is not meant to be a negative reflection of a Soldier’s military service. It merely means the Soldier has not been in the Army long enough for his or her character of service to be rated as honorable or otherwise. As a result, there is no basis for granting the applicant's request. 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. 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) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included 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 absence 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. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for patterns of misconduct; however, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record. The service of Soldiers specified in this paragraph who are in entry level status will be uncharacterized, even though they have completed their initial active duty training (IADT). The Army considers entry level status as the first 180 days of continuous active military service. 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 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. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 6 of that regulation provided, in pertinent part, enlisted members of the active army and the reserve components serving on active duty or active duty training may be discharged or released (para 6-10) because of genuine dependency or hardship. d. Dependency exists when death or disability of a member of a Soldier's (or spouses) immediate family causes that member to rely upon the soldier for principal care or support. e. Hardship exists when in circumstances not involving death or disability of a member of the Soldier's (or spouses) immediate family, separation from the Service will materially affect the care or support of the family by alleviating undue and genuine hardship. 4. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. It states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge. 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 unless a waiver is granted. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The "JKD" SPD code is the correct code for Soldiers separating under chapter 14-12c Army Regulation 635-200 by reason of misconduct - commission of a serious offense. 6. 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 table in effect at the time of his discharge shows the SPD code of "JKD" has a corresponding RE code of "3." 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017903 5 1