ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20180014004 APPLICANT REQUESTS: * Upgrade his general discharge under honorable conditions to honorable * Amend his Reentry (RE) Code from RE-3 (waiver required) to RE-1 (no waiver) * In effect, determine the applicant's time served in civilian pre-trial confinement was an unavoidable absence, vice lost time * Assuming lost time is voided, reimburse all back pay and allowances for the period spent in civilian pre-trial confinement * Reinstate onto active duty * Assuming reinstatement, reimburse all back pay and allowances for the period 12 October 2013 through 31 August 2015 (counsel's estimate of applicant's expiration term of service (ETS)) * Promote to staff sergeant (SSG)/E-6 * Other relief as appropriate APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board (ADRB)) * Enclosure 1 – DD Form 214 (Certificate of Release or Discharge from Active Duty) * Enclosure 2 – Army Achievement Medal Certificate * Enclosures 3 and 4 – Two Army Commendation Medal Certificates * Enclosures 5 and 6 – Two Army Achievement Medal Certificates * Enclosures 7 through 9 – Three Army Commendation Medal Certificates * Enclosure 10 – Commander's Report – Proposed Separation, with DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), and Verbatim Findings and Recommendations * Enclosure 11 – Memorandum for Record (MFR), Subject: Objection to Findings * Enclosure 12 – MFR, Subject: Government Response to Defense Objection to Findings * Enclosure 13 – MFR, Legal Advice following Separation Board * Enclosure 14 – Memorandum showing Separation Authority Action * Enclosure 15 – State Superior Court Judgment/order or Other Disposition * Enclosure 16 – Defense Finance and Accounting Service (DFAS) letter with DFAS-IN (Indianapolis) Form 0-641 and Bonus Recoupment document * Enclosure 17 – Department of the Treasury letter * Enclosure 18 – Extract from Department of Defense (DOD) 7000.14-R, Financial Management Regulation (FMR), Volume 7A (Military Pay Policy – Active Duty and Reserve Pay), Chapter 01 (Basic Pay) * Enclosure 19 – State General Court of Justice Before the Clerk Criminal Record Search * Enclosure 20 – Magistrate's Order * Enclosures 21 through 23 – Three Affidavits FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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. Counsel states the applicant seeks relief from an injustice and has exhausted all administrative remedies under existing statutory and regulatory guidance. a. Counsel restates Title 10, U.S. Code, section 1552 and cites case law in describing the basis for the applicant's request; he argues, an inequity exists when the discharge is inconsistent with disciplinary standards at the time, or when the quality of, as well as a member's capability to perform military service, make the discharge unfair. Counsel goes on to list factors for the Board's consideration, quotes the Administrative Procedure Act, and defines the standard of review. b. Counsel provides the applicant's personal history, indicates he had family members who served in the military, and gives details about the applicant's military service, particularly noting of his deployments and how he earned his awards. c. Counsel affirms the applicant was divorced from his estranged former spouse since December 2010, and that the applicant had a long list of issues with his former spouse, which included being physically assaulted by her. She was very erratic, often threatened to call the police, and even made false reports to the applicant's chain of command. d. On 25 June 2011, the applicant met with his former spouse to discuss their "nonexistent relationship," along with some false allegations she had made to his chain of command. While there, the applicant received a call from his cousin; he and his cousin agreed to meet at the club, and when he told his former spouse he was leaving, she became enraged. She grabbed a knife and threatened to harm both the applicant and herself. The applicant attempted to take the knife away and, in the ensuing struggle, sustained several cuts and abrasions. The applicant left the scene once he was able to take the knife away from her; following his departure, his former spouse called the police and concocted a story, essentially accusing the applicant of trying to kill and kidnap her. e. On 26 June 2011, the civilian police arrested the applicant and charged him with attempted murder in the first degree; assault with a deadly weapon with the intent to kill or inflict serious harm; communicating threats; and first degree kidnapping. The civil authority placed the applicant in confinement for 900 consecutive days, pending his trial. f. As the applicant waited in civil confinement for his day in court, his commander initiated separation action against him; the commander's separation recommendation was forwarded to a board of officers, who determined the applicant should be separated under other than honorable conditions. The board found, although the applicant did not attempt to murder his former spouse, he did use violence to produce serious bodily injury; all findings were made without hearing from the applicant, and were based solely on the testimony of the former spouse. After the hearing, the applicant's counsel prepared a written objection, arguing the attempted murder was the only basis for the separation action; because the board found the applicant had not attempted murder, the separation action should be suspended pending the outcome of his civilian trial or the applicant should be retained. Counsel notes, at the time of the board, the applicant had spent over 2 years in civilian confinement, and he had already served his country well through four deployments and with no prior misconduct. g. The brigade trial counsel prepared a rebuttal for the defense counsel's objections, in which she essentially affirmed the board's results; on 16 August 2013, the separation authority directed the applicant's discharge. Counsel argues, the separation authority's decision was based on insufficient evidence; in addition, the applicant was never allowed to speak on his own behalf before the board. On 11 October 2013, the applicant was discharged under honorable conditions (general), per paragraph 14-12c (Acts or Patterns of Misconduct – Commission of a Serious Offense), Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). h. On 12 December 2013, (2 months after his separation), the State Superior Court issued a Judgment/Order stating it found the applicant not guilty of all charges. On 25 February 2014, DFAS advised the applicant via letter that he owed the government $7,558.09; he incurred this debt based on the recoupment of his reenlistment bonus, for his meals, and as a result of government property losses. On 28 May 2014, the Department of the Treasury sent the applicant a letter showing he then owed $9,736.72, which included all fees, interest, and penalties. Despite being found innocent by a court of law, the applicant was being required to pay this debt due to his discharge. Counsel cites the DOD FMR, which states, when a member was confined by civil authorities, and is subsequently acquitted of all charges, the absence may be excused as unavoidable; the result of such a determination is that the time spent in civil confinement is no longer considered to be lost time, and the applicant is entitled to all pay and allowances for that period. i. Since his discharge, the applicant has relocated, remarried, and is currently working overseas as a contractor. When he is home, he spends time with his daughter, who was born while he was incarcerated; he also has a strong desire to go to school, but his character of service precludes him from pursuing his education. In addition, the applicant has had a very positive impact on a number of individuals, as supported by the affidavits that counsel provides. Counsel summarizes the substance of the affidavits. k. Counsel asserts, the applicant's commander wrongly and unjustly discharged him; further, the applicant's separation violates the regulation. Counsel argues this is because, in order to meet the criteria for paragraph 14-12c, the criminal elements of proof for the serious offense in question must be proved; the board's findings relied solely on alleged accusations for which there was no supporting evidence. Furthermore, the fact the board reached a finding of guilt is a clear abuse of discretion; the board cannot ignore law or the Uniform Code of Military Justice (UCMJ). Counsel contends, for the Army to allow this discharge to continue is wrong and unjust; "an innocent member of the United States Army was wrongfully and erroneously separated for a crime that he did not commit." The Board should upgrade the applicant's character of service both because the civil court exonerated him, and his overall quality of service merits an honorable discharge; counsel highlights the applicant's awards, and, with regard to the applicant's four deployments, rhetorically asks, "what greater loyalty can a citizen have to our country but to be willing to lay down their life is (sic) its defense." l. The applicant's commander wrongfully withheld pay and allowances from 26 June 2011 until 11 October 2013 (the period during which the applicant awaited his trial in civil confinement). Given counsel's earlier arguments, and his reference to the DOD FMR, the applicant's absence should be deemed unavoidable, and all pay and allowances for the period should be disbursed. Counsel also notes, during his incarceration, the applicant was not afforded advancement opportunities; applying the criteria outlined in AR 600-8-19 (Enlisted Promotions and Reductions), the applicant's outstanding record would have clearly resulted in his immediate promotion from sergeant (SGT)/E-5 to staff sergeant (SSG)/E-6. Counsel submits calculations for the reimbursement of pay and allowances, based both on the applicant's rank at separation and his proposed promotion to SSG. As a SGT, counsel asserts the applicant would be owed $110,498.45; as a SSG, the amount is $120,459.59. m. The applicant's commander unjustly and unfairly discharged the applicant, thus causing him to incur lost time. Counsel contends, the fact a civil court acquitted the applicant makes him eligible for reinstatement into the Army, receipt of all past pay and allowances, and advancement to SSG. Counsel restates his arguments, asserting: * Reinstatement – the applicant's career was justly cut short by his commander's action * Promotion to SSG – the applicant's incarceration denied him the opportunity for advancement, despite his meritorious record and eligibility (i.e. time-in- grade (TIG): 10 months; time-in-service (TIS): 84 months ) * Back pay and allowances – counting from the date of separation through the applicant's original EOS (end of obligated service) date of 31 August 2015; for that period, pay as a SGT would be $96,384 and as a SSG he would receive $105,562.49 3. The applicant/counsel provides: * Documents from the applicant's service record, to include his awards and extracts from separation proceedings * State court document, dated 12 December 2013, showing the applicant appeared before a State Superior Court, entered a not guilty plea, and a jury found him not guilty to all counts (included attempted murder and first degree kidnapping) * DFAS and Department of Treasury letters and documents, along with a portion of the DOD FMR * Three affidavits from a longtime friend, the applicant's father, and the mother of his daughter; all affirm he is a good man who still has aspirations for a career in the Army; he is a man of character, integrity, honesty, loyalty, and selflessness 4. The applicant's service records show: a. On 21 June 2002, he enlisted into the Regular Army and was awarded military occupational specialty (MOS) 91D (Power-Generation Equipment Repairer). He deployed to Iraq four times and maintained continuous honorable active service from initial enlistment until 28 November 2009 (last reenlistment date): * First deployed from 25 January to 28 August 2003; deployed a second time from 4 January 2005 to 3 January 2006 * Third deployment occurred on 14 January 2007; during deployment , he immediately reenlisted for 3 years; he redeployed on 31 March 2008 * Final deployment began on 14 January 2007; on 28 November 2009, while deployed, he immediately reenlisted for 5 years (making his ETS 27 November 2014); he returned from deployment on 1 May 2010 * his service record is void of documentation indicating he executed any additional extensions or reenlistments b. Effective 26 June 2011, the applicant's unit reported his confinement by civil authority on a DA Form 4187 (Personnel Action); the form showed local police had arrested the applicant, and he remained in jail for domestic violence and attempted murder. c. On 12 April 2013, the applicant's commander advised him, via memorandum, of his intent to separate the applicant under paragraph 14-12c, chapter 14, AR 635-200, because the applicant had "attempted to murder his ex-wife"; the applicant acknowledged receipt on 12 April 2013. d. On 11 May 2013, after consulting with counsel, the applicant elected to personally appear before an administrative separation board with counsel; he also indicated he was submitting statements in his own behalf, but the statements are not available for review. e. On 12 June 2013, the separation authority's Staff Judge Advocate (SJA) prepared a memorandum; he stated the applicant was in civil confinement and being prosecuted by civil authority. (1) On 26 June 2011, the applicant assaulted his former spouse, an Army specialist, by stabbing her in the chest with a kitchen knife. The applicant also threatened to physically injure his former spouse by holding a lighter and can of Lysol, and telling her he was going to kill her. (2) On 12 April 2013, the applicant's commander notified him of the intent to separate him; the applicant elected to personally appear before an administrative separation board. The SJA recommended the separation authority convene an administrative separation board. f. On 8 May 2013, the separation authority appointed an administrative separation board to consider the applicant's case. The board convened on 16 July 2013; although the applicant was not present, he was represented by counsel (a Judge Advocate General officer). (1) The board heard testimony from a civilian police detective who participated in the investigation of charges against the applicant; he described the scene of the 26 June 2011 incident. The board also heard from the applicant's former spouse, who explained how she and the applicant met, got married, and why they subsequently divorced; she provided a detailed description of the incident. The board's final witness was the applicant's civilian attorney; he indicated, at that point, the applicant's case was in limbo. The State was having evidence tested; specifically a t-shirt worn by the applicant the night of the incident. The testing revealed blood stains on the t-shirt belonged to the applicant, not his former spouse; the applicant alleged his former spouse attacked him and he sustained injuries as he fought her off. (2) After hearing testimony and reviewing evidence, the administrative separation board found the applicant had not attempted to murder his former spouse; instead, he had used violence to produce serious bodily injury. In addition, the board recommended separation with an under other than honorable conditions character of service. g. On 16 July 2013, the military counsel who defended the applicant before the administrative separation board provided a memorandum of record (MFR), which outlined his objections to the board's findings: (1) Counsel noted the administrative separation board had found the applicant did not attempt to murder his spouse, but instead determined the applicant had used violence to produce serious bodily harm. Counsel argued the attempted murder allegation had been the sole reason for initiating separation action and, because the board determined the applicant committed a different act of violence, the applicant should either be retained or the separation action should be suspended until the conclusion of the applicant's civil trial. (2) Counsel contended the applicant had not received proper notice that using violence to produce serious bodily harm could be applied as a basis for separation. As a result, the applicant did not prepare a defense to counter this reason and, in effect, counsel indicated, had he known, he would have offered the board different arguments. In addition, the board's finding reflected the serious doubt the board had as to the victim's version of events and whether the applicant could be convicted of attempted murder. (3) Counsel stated the applicant had already been in civilian confinement for more than 2 years; he had served his country well during 4 combat deployments, and there was no indication he had been the subject in any past crimes. Based on the foregoing, the board's findings should be set aside and the applicant should be retained; in the alternative, the separation proceedings should be suspended, pending the outcome of the applicant's civilian trial. h. On 17 July 2013, the brigade trial counsel prepared an MFR, giving the government's response to counsel's 16 July 2013 MFR; the trial counsel requested the board's findings and recommendations be upheld, and that the applicant be separated under other than honorable conditions. (1) On 12 April 2013, the applicant received notice of his administrative separation board, and was advised the separation action was predicated on paragraph 14-12c, AR 635-200. When warranted by the circumstances, this provision permitted the separation of Soldiers who had committed a serious offense that, under the Manual for Courts-Martial (MCM), was an authorized a punitive discharge as a punishment, when based on the same or a similar offense. Assault with the intent to inflict grievous bodily harm was closely related to assault with the intent to commit murder. (2) The governing regulation permitted the board to separate the applicant as a result of its findings; of note, AR 635-200, paragraph 1-15c (1) (Guidance) encourages boards to consider the seriousness of the events that form the basis for separation. (Paragraph 1-15c(1) states, "When deciding retention or separation in a case, consider...the seriousness of the events or conditions that form the basis for initiation of separation proceedings. Also consider the effect of the Soldier's continued retention on military discipline, good order, and morale."). i. On 16 August 2013, the separation authority approved the administrative separation board's findings and recommendation; he directed the applicant's under other than honorable conditions discharged, along with recoupment of the applicant's unearned reenlistment bonus. j. On 11 October 2013, the applicant was separated with a general discharge under honorable conditions (the record does not explain why the character of service was not under other than honorable conditions, as previously directed by the separation authority). His DD Form 214 shows he completed a total of 9 years, 3 months, and 1 day of net active creditable service, with 3 years, 10 months, and 14 days served on his 5-year reenlistment contract. The DD Form 214 also reflects lost time from 26 June 2011 through 11 October 2013 (839 days). The separation authority is AR 635-200, paragraph 14-12c; the separation code (SPD) is "JKQ"; and his RE code is "3." He was awarded or authorized: * Army Commendation Medal (5th Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal (2nd Award) * Iraq Campaign Medal with four bronze service stars * Noncommissioned Officer Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon k. State Superior Court documents, dated 12 December 2013 and submitted by counsel, indicate a jury found the applicant not guilty of all charges. l. On 18 August 2015, through counsel, the applicant petitioned the ADRB, requesting an upgrade to honorable and a change of his RE code to RE-1. On 15 March 2017, the ADRB conducted a records review and determined the applicant's separation was both proper and equitable. 5. Per AR 635-200, commanders were to initiate separation action against Soldiers who had committed serious offenses for which the maximum punishment, per the MCM, included a punitive discharge (i.e. bad conduct or dishonorable). a. Soldiers were entitled to have their case heard by an administrative separation board if they had 6 or more years of total active and reserve service. If the Soldier was in civilian custody, he/she was notified that the hearing would proceed in his/her absence, and that he/she would be represented by counsel. b. A Soldier held in custody by civil authorities did not accrue creditable service for the completion of his/her term of enlistment; the exception was for cases where the Soldier's commander determined the period in civilian custody should not be considered lost time. c. The regulation stated boards were to conform to AR 15-6 (Procedures for Investigating Officers and Boards of Officers) when conducting formal proceedings. Per AR 15-6, administrative separation boards were not judicial; as such, they were not bound by the rules of evidence used by courts-martial. Subject to the following limitations, anything that was determined to be relevant and material could be considered. Limitations included: privileged communications; "off-the-record" statements; involuntary admissions; and bad faith/unlawful searches. d. Separations normally were not to be based on conduct that had already been considered by a judicial proceeding and disposed of in a manner indicating separation was not warranted; this included cases where Soldiers had been subject to judicial proceedings during which he/she was acquitted. Only Headquarters, Department of the Army (HQDA) was authorized to decide that an action did not have the effect of an acquittal; the convening authority was required to submit a request through command channels to HQDA. 6. The applicant requests changing his RE code from RE-3 to RE-1; a separating Soldier's RE code is linked to the separation authority and its associated SPD code. According to the SPD/RE Code Cross Reference Table, which provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers, Soldiers separated under paragraph 14-12c, and with an SPD code of "JKQ," are given the corresponding RE code of "3." 7. Per the DOD FMR, table 1-2 (Absence from Duty in Enlisted Status), when an absence is because of confinement for more than 1 day while awaiting trial, and the member was an Army Soldier, the period spent in confinement is creditable if the Soldier is acquitted. 8. Under AR 15-185 (ABCMR), the Board can decide on matters that will potentially affect monetary entitlements and/or benefits; such decisions are furnished to DFAS for action. DFAS, in turn, will to treat such decisions as claims for payment by or on behalf of an applicant; the applicant's acceptance of a settlement fully satisfies the claim concerned. In addition, revocation of the applicant's separation order would have the effect of restoring him to active duty. 9. The Army promotes Soldiers to SSG through a semi-centralized process; the unit, at installation/command-level, initially recommends eligible Soldiers, and, following a screening by a promotion board, provides HQDA with the Soldier's promotion points. HQDA consolidates all promotion points into an Army-wide consolidated list and, on a monthly basis, issues promotion cut-off scores, by grade and MOS; the needs of the Army determine which MOS are authorized promotion for a given month. There are twenty criteria for promotion to SSG, including TIS and TIG. 10. The available evidence shows, prior to the commander's initiation of separation action, the applicant had been in civilian confinement for 1 year, 9 months and 17 days, and was pending trial for multiple charges, to include attempted murder. a. An administrative separation board convened and returned a finding, derived from the preponderance of evidence, that the applicant had seriously injured his ex- spouse; as a result, the board recommended separation under other than honorable conditions. b. Subsequently, the separation authority approved the board's findings and recommendations, and directed the applicant's separation under other than honorable conditions. c. On 11 October 2013, the applicant was separated with a general discharge under honorable conditions; the applicant's service record is void of any explanation as to why the character of service was not under other than honorable conditions. d. Counsel provides State court documents, which show a jury found the applicant not guilty on all counts (included attempted murder and first degree kidnapping). In addition, counsel provided affidavits of support that attested to the applicant's character, loyalty, and selflessness; the applicant express a desire to continue his military career. 11. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, his record of service, the nature of the misconduct, his civilian confinement, and the reason for his separation. The Board also considered the findings of the administrative separation, his separation prior to the outcome of civil court proceedings and the resulting character of service. The Board found insufficient evidence to determine that the applicant had been unjustly separated as a result of charges and his civil confinement, the outcome in the courts notwithstanding. The RE code he received at the time of separation was also not in error or unjust; the applicant is eligible to re-enter service with a waiver. The Board further determined that the time lost while in civilian confinement was not an unavoidable absence as the applicant was pending multiple charges at the time and as such, he was not entitled to pay and allowances during that period of time. The Board found no evidence of error or injustice in the administrative board proceedings and therefore found no basis for the applicant’s reinstatement onto Active Duty. The Board found no evidence that the applicant had been selected for or promoted to SSG prior to his separation. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s records that require correction. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200 (Active Duty Enlisted Administrative Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-17 (Restriction on Administrative Separation and Board Hearings) stated a separation would not normally be based on conduct that had already been considered by a judicial proceeding and disposed of in a manner indicating separation was not warranted. This included cases where Soldiers had been subject to judicial proceedings during which he/she was acquitted. Only HQDA could decide that an action did not have the effect of an acquittal; the convening authority had to submit a request through command channels to HQDA. b. Paragraph 2-2 (Notice) stated commanders were required to notify Soldiers in writing of their intent to separate them; the commander was to cite the specific allegations and advise the Soldier of his/her rights. Soldiers were entitled to have their case heard by an administrative separation board when they had 6 or more years of total active and reserve service. c. Paragraph 2-10 (Board Procedures) provided guidance for the convening of administrative separation boards and outlined the rights of a Soldier. The board was to conform to AR 15-6 when conducting formal proceedings. d. Paragraph 2-11 (Evidence) stated the rules of evidence for courts-martial and other judicial proceedings were not applicable; however, reasonable restrictions were to be observed concerning relevancy and competency of evidence. e. Paragraph 2-13 (Processing in Absence of Soldier) stated, when proceedings had been initiated against a Soldier who was absent due to civil confinement, the case could be processed in his/her absence. A Soldier held in custody by civil authorities did not accrue service creditable for the completion of his/her period of enlistment, except for any period determined not to be lost time by the Soldier's commander, per AR 630-10. f. Paragraph 2-14 (Civil Confinement) states, when a Soldier was entitled to an administrative separation board, he/she would be notified that the hearing would proceed in his/her absence and he/she would be represented by counsel. g. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. h. Chapter 14 (Separation for Misconduct) established policy and prescribed procedures for separating members for misconduct. Action was to be to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed a serious military or civilian offense, when required by the specific circumstances warrant separation and a punitive discharge was, or could be authorized for that same or relatively similar offense under the UCMJ. 3. AR 15-6, in effect at the time, established procedures for boards of officer. Paragraph 3-7 (Rules of Evidence and Proof of Facts) stated proceedings were administrative, not judicial; as such, boards were not bound by the rules of evidence used by courts-martial. Subject to the following limitations, anything that was determined to be relevant and material could be considered. Limitations included: privileged communications; "off-the-record" statements; involuntary admissions; and bad faith, unlawful searches. 4. Appendix 12 (Maximum Punishment Chart), MCM, in effect at the time, shows the maximum punishments include punitive discharges for violating the following articles of the UCMJ: * Article 80 (Attempts) – maximum punishment is the same as authorized for the offense attempted * Article 118 (Murder) * Article 128 (Aggravated Assault in which Grievous Bodily Harm is Intentionally Inflicted) * Article 134 (General Article – Kidnapping) 5. AR 630-10 (Absence Without Leave (AWOL), Desertion, and Administration of Personnel Involved in Civilian Court Proceedings) establishes policies and procedures with regard to Soldiers who are AWOL, have deserted, or are held by civilian authorities. The Soldier's unit of assignment is responsible for reporting a Soldier is in civilian custody and when that Soldier returns to military control. 6. AR 601-210 (Regular Army and RC Enlistment Program), in effect at the time, covered eligibility criteria, policies, and procedures for the Active Army and RC enlistment program. Table 3-1 (U.S. Army RE Eligibility Codes) included a list of the RE codes: * RE-1 applied to Soldiers completing their term of active service who were considered qualified to reenter the U.S. Army; they were qualified for enlistment if all other criteria are met * RE-3 applied to Soldiers who were not considered fully qualified for reentry or continuous service at time of separation, but disqualification was waivable; they were ineligible unless a waiver is granted 7. AR 635-5-1 (SPD) states Soldier separated under paragraph 14-12c, AR 635-200 receive an SPD of "JKQ." 8. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and RC Soldiers. This cross reference table shows the SPD code and a corresponding RE code. The SPD code of "JKQ" has a corresponding RE code of "3." 9. DOD 7000.14-R, FMR, Volume 7A, Chapter 1 prescribes the criteria for determining creditable service for military members. In paragraph 010202 (Service Not Creditable), subparagraph B (Effect of Lost Time Absence from Duty on Creditable Service), it refers to Table 1-2 (Absence from Duty in Enlisted Status). This table lists rules pertaining the absences, and shows, when an absence is because of confinement for more than 1 day while awaiting trial, and the member was an Army Soldier, the period spent in confinement is creditable when the Soldier has been acquitted. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 3-2 (Settlement of Claims) states the ABCMR will furnish DFAS copies of decision potentially affecting monetary entitlements and/or benefits. The DFAA will treat such decisions as claims for payment by or on behalf of an applicant. The DFAS will settle claims on the basis of the corrected record. DFAS will compute the amount due, if any; earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted. The applicant's acceptance of a settlement fully satisfies the claim concerned. 11. AR 600-8-19, in effect at the time, prescribed policies and procedures for enlisted promotions and reductions. a. Promotions to SSG are semi-centralized: field operations handle board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotion; HQDA and the U.S. Army Human Resources Command (HRC) determine the needs of the Army by military occupational specialty (MOS) and grade. Units forward the recommended Soldier's points via database and HQDA consolidates into an Army-wide list. Each month, HQDA determines promotion point cutoff scores by MOS. b. To be recommended for promotion, the Soldier must fulfill twenty eligibility criteria, which include having the required TIS and TIG for board appearance (SSG: 70 months TIS and 8 months TIG), as well as fulfilling civilian and military educational requirements, and meeting physical standards. 11. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have subsequently been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 12. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 13. 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 on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony (to include that provided by an applicant), 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. ABCMR Record of Proceedings (cont) AR20180014004 13 1