ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 September 2019 DOCKET NUMBER: AR20190000083 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge, and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 August 2011, to show his reentry (RE) code as "1" instead of "3." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 11 October 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 22 August 2011 * two letters of support FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); 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. The applicant states it has been several years since his discharge and the discharge no longer reflects his character and who he is. He would like to be able to reenlist. 3. The applicant enlisted in the Regular Army on 30 June 2010. 4. The applicant received 12 negative general counseling statements between 12 April and 18 July 2011, for diverse reasons including but not limited to failing to go to his appointed place of duty, disrespecting a senior noncommissioned officer (NCO), threatening an NCO, and willfully disobeying a lawful order. 5. The applicant was command referred for a behavioral health evaluation on 6 June 2011. As the basis for the referral, his commander noted that he was pending trial before a summary court-martial for failure to adhere to unit policy and Army regulations, as well as his lack of motivation and repeated instances of being disrespectful toward cadre members. The applicant acknowledged receipt of the referral memorandum on 7 June 2011. 6. The applicant underwent a mental status evaluation on 20 June 2011. The relevant DA Form 3822 shows the examining official recommended that he be returned to duty with no change in duty status, and psychiatrically cleared him for any administrative action deemed appropriate by his command. 7. The applicant received nonjudicial punishment (NJP) on 29 June 2011, under Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty (four occurrences), using disrespectful language toward an NCO, disobeying a lawful order from an NCO (three occurrences), disobeying a lawful order from a commissioned officer, dereliction of duty, making a false official statement, and communicating a threat toward an NCO. 8. The applicant's unit commander notified the applicant on 2 August 2011 that he was initiating actions to separate the applicant from the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct. The separation recommendation indicates that summary court-martial charges were preferred against the applicant for violations of the UCMJ; however, the relevant DD Form 458 (Charge Sheet) is not available for review. 9. The applicant consulted with legal counsel on 2 August 2011. a. He was advised of the basis for the contemplated discharge, the possible effects of an under honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant acknowledged the proposed discharge. He acknowledged he understood that if he was discharged with a general discharge he could be deprived some or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could expect to encounter substantial prejudice in civilian life if he received a general discharge. c. He was advised he could submit any statements he desired in his own behalf but waived this option. 10. The applicant's unit commander formally recommended the applicant's separation from service on 3 August 2011, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of misconduct. The separation authority approved the recommended discharge on 16 August 2011, under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. 11. The applicant was discharged on 22 August 2011. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b. His DD Form 214 further shows his service was characterized as under honorable conditions (general), his separation code was "JKA," and his RE code was "3." 12. The Army Discharge Review Board denied the applicant's request for an upgrade on 30 January 2013 and 10 February 2015. 13. The applicant provides letters of support that describe him as a good friend, having become much more mature over the years, and as an asset to the team. He is described as a kind hearted, generous, and good father figure to both his child and theirs. 14. Regulations provide that an RE code is linked to the separation code, which in turn is linked to the reason and authority for separation. An RE Code of "3" is not upgraded unless it was administratively incorrect when originally issued. An RE code of "3" does not prevent reentry but does require a waiver. 15. The Board may consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 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 frequency and nature of his misconduct, the mental status evaluation and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. The Board considered the two letters of support the applicant provided but found no further evidence of post-service achievements and determined the evidence to be insufficient to support a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and reenlistment code the applicant received upon separation was not in error or unjust. 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 : 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. 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 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 601–210 (Regular Army and Reserve Components Enlistment Program) provides: a. An RE code is not upgraded unless it was administratively incorrect when originally issued. b. RE code "1" applies to personnel who have completed their obligated term of active service and are considered qualified to reenter the U.S. Army if all other criteria are met. c. RE code "3" applies to personnel who are not considered fully qualified for reentry or continuous service at time of separation, but whose disqualification is waivable. They are ineligible unless a waiver is granted. d. Separation Program Designator (SPD)/RE Code Cross Reference Table provides that RE code "3" is the appropriate RE code for Soldiers separated with the separation code "JKA." 3. Army Regulation 635–5–1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states, in pertinent part, that the separation code "JKA" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of a pattern of misconduct. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 14-12b provides for separating personnel for a pattern of misconduct consisting of one of the following: (1) Discreditable involvement with civil or military authorities. (2) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. 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, Boards 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) AR20190000083 4 1