ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 30 July 2019 DOCKET NUMBER: AR20180015394 APPLICANT REQUESTS: The applicant requests: * an upgrade of his general under honorable conditions discharge to an honorable discharge * to change his reentry (RE) code 4 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Letters/Character References FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090012232 on 7 January 2010. 2. The applicant states newly found evidence shows the circumstances surrounding his discharge were handled improperly, lacking proper protocol or (illegible) or representation. He asks that the Board looks into the facts at that time because he would like a true and just outcome from this. 3. On 30 May 2002, at the age of 19 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. The record shows that on 1 August 2003, he accepted nonjudicial punishment (NJP) for wrongfully using marijuana. The applicant also received two counseling statements regarding the offense. 5. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c(2), for commission of a serious offense. 6. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised by his consulting counsel of the basis for the contemplated action, understood his rights, and elected not to submit statements in his own behalf. 7. The applicant’s intermediate commander recommended approval of the separation and the appropriate commander approved the recommendation for separation and directed that the applicant’s service be characterized as general, under honorable conditions. 8. On 16 December 2003, the applicant was discharged accordingly. His service was characterized as under honorable conditions (general). He completed 1 year, 6 months, and 17 days of net active service this period. His DD Form 214 (Certificate of Release or Discharge from Active Duty), shows: * Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): * National Defense Service Medal * Army Service Ribbon * Overseas Service Ribbon * Rifle Expert Marksmanship Qualification Badge * Hand Grenade Sharpshooter Marksmanship Qualification Badge * Item 25 (Separation Authority): AR 635-200, Paragraph 14-12c(2) * Item 26 (Separation Code): "JKK" * Item 27 (Reentry Code): "4" 9. The applicant petitioned the Army Discharge Review Board (ADRB) on two occasions to upgrade his discharge and the ADRB denied both petitions, determining that he was properly and equitably discharged. 10. The applicant petitioned the ABCMR for an upgrade of his discharge and the ABCMR denied the petition, stating the evidence presented does not demonstrate the existence of a probable error or injustice. 11. The applicant provided two letters/character references: a. A memorandum from the Boise Military Entrance Processing Station, Boise, ID, operations officer, dated 24 November 2014, states he recommends a change of disposition of the discharge for the applicant. The applicant was a dependable and one of the most reliable Soldiers while assigned to the unit. The applicant was never given the opportunity to correct his mistake while other Soldiers were allowed to remain in the Army. He recommends an upgrade of his discharge because of the applicant’s unequal treatment, which would entitle him to the same veteran benefits as others and to prosper in society. b. A memorandum from the National Training Center & Fort Irwin, Fort Irwin, CA, drug test coordinator, dated 15 October 2018, explains he is writing the letter on behalf of the applicant. He is now aware that the specimens collected while they were assigned to Schofield Barracks were improper. The unit was at the brink of a deployment and the applicant was never given the proper opportunity to be enrolled in the Alcohol and Substance Abuse Program (ASAP) treatment program. The collection process had many flaws and he goes on the list various flaws in the process. He describes the commanders' responsibilities when a Soldier is suspected or identified as an alcohol or drug abuser. 12. AR 635-200, Chapter 14 (Misconduct), Section III, paragraph 14-12c, was a separation for commission of a serious offense as evidence by commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case 13. AR 635-5-1 (Separation Program Designator Codes) stated the reason for discharge based on separation code "JKK" is "Misconduct" and the regulatory authority is AR 635-200, paragraph 14-12c(2). 14. AR 601-210 (Regular Army and Army Reserve Enlistment Program), chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes. * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 15. The Separation Program Designator Code/Reentry Code Cross Reference Table shows that when the Separation Program Designator is "JKK" then an RE code of 4 will be assigned. 16. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD 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 statements, the frequency and nature of his misconduct, the supporting statements/letter of reference provided by the applicant specific to testing and performance, and whether to apply clemency. The Board found that the applicant provided no evidence of post-service achievements or additional letters of reference in support of clemency. The Board determined there was insufficient evidence of mitigating factors to overcome the misconduct and that the character of service the applicant received at separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. a. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. b. 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 had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. 2. AR 635-5-1 (Separation Program Designator Codes), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons. The regulation states the reason for discharge based on separation code "JKK" is "Misconduct" and the regulatory authority is Army Regulation 635-200, paragraph 14-12c(2). 3. AR 601-210 (Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons with or without prior service, into the Regular Army and the U U.S. Army Reserve. Chapter 3 prescribed basic eligibility for prior service applicants for enlistment, which included a list of Armed Forces RE codes: * RE-4 applies to persons separated from their last period of service with a non- waivable disqualification * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 4. The Separation Program Designator Code/Reentry Code Cross Reference Table shows that when the Separation Program Designator is "JKK" then an RE code of 4 will be assigned. 5. 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. ABCMR Record of Proceedings (cont) AR20180015394 6 1