ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 November 2019 DOCKET NUMBER: AR20190003549 APPLICANT REQUESTS: a. his under other than honorable condition (UOTHC) discharge be upgraded to an honorable discharge; and b. correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 April 2001, to show his reentry code (RE code) as "1" instead of "3," and to show his narrative reason for separation as "For the Convenience of the Government" instead of "In Lieu of Trial By Court-Martial." 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 5 February 2019 * Legal Brief in Support of Discharge Upgrade, dated 19 December 2018 * DD Form 214 for the period ending 27 April 2001 * Basic Combat Training Course Diploma * Fire Support Specialist Course Diploma * Certificate of Writing in Official Custody * Commander's Report of Disciplinary or Administrative Action * Military Police Report * Oak Hills High School Diplomas * Certificate of Achievement/Licensed Vocational Nurse * Certificates of Completion in Nursing Assistant * Certificates of Completion of Blood Withdrawal Certification Class * Cuesta College Continuing Education Certificates and Certificate of Attendance 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. 1 2. The applicant states his discharge was unfair at the time, it was procedurally defective, and it has served its purpose. 3. The applicant enlisted in the Regular Army on 3 December 1999. 4. A U.S. Army Criminal Investigation Command (CID) Report of Investigation shows an investigation was initiated on 13 December 2000, following the receipt of two urine specimens collected during a urinalysis conducted on 27 November 2000. a. After testing, these samples indicated the applicant and another Soldier tested positive for the use of methylenedioxy-methamphetamine (MDMA). The investigation established probable cause to believe the applicant committed the offense of wrongful use of a controlled substance when he used MDMA on 30 October, 11 November, 18 November, 25 November, and 8 December 2000. b. Further investigation established probable cause that the applicant committed the offenses of wrongful distribution of a controlled substance on 18 November 2000 and disobeying a lawful order or regulation. The offenses were corroborated by his own admission, a urinalysis sample, and the sworn statements of other Soldiers. 5. Court-martial charges were preferred against the applicant on 7 March 2001 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with the following offenses: * wrongfully using MDMA, on or about 31 October 2000 * wrongfully using MDMA, on or about 11 November 2000 * wrongfully visiting club 1739, an off limit establishment, on or about 18 November 2000 * wrongfully using MDMA, on or about 18 November 2000 * wrongfully using MDMA, on or about 25 November 2000 * wrongfully distribute two and one-half pills of MDMA, a controlled substance, on or about 25 November 2000 * wrongfully using MDMA, on or about 8 December 2000 * wrongfully distribute 1 pill of MDMA, a controlled substance, on or about 8 December 2000 6. The applicant consulted with counsel on 15 March 2001. a. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an UOTHC discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he could submit any statements he desired in his own behalf. His request shows he elected not to submit a statement. 7. The separation authority approved his request for discharge on 5 April 2001 and directed his reduction to the lowest enlisted grade and the issuance UOTHC discharge. 8. The applicant was discharged on 27 April 2001, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. His DD Form 214 confirms his service was characterized as UOTHC; his separation code was "KFS"; his RE code was "3"; and his narrative reason for separation was "In Lieu of Trial by Court-Martial." 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The applicant provides a Legal Brief in Support of Discharge Upgrade. In the brief, his counsel contends that the board should consider the following: a. There is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the service-member. In this case, there was a hasty command-initiated request for separation. b. The applicant was experiencing substance abuse issues but the command did not find out if there was any way that they could have helped him. c. Consideration should have been given to the applicant's potential for rehabilitation, and his entire record should be reviewed before taking action. The commanding officer must provide the member reasonable time to overcome deficiencies. In this case there was a rush to judgment as there was a problem that could not be fixed. The command should have evaluated the applicant as to whether he had a long-term problem or whether there was an immediate fix. d. Although the command was authorized to administratively separate the applicant, the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate his elimination. e. The instruction also allows for the service member to be able to "fix" the problem. The applicant was not allowed the opportunity. He was never offered or provided with rehabilitation. The command in this case did not have the proper authority to administratively separate the applicant. f. The UOTHC discharge does not serve a further purpose. The events that took place are no longer relevant to the applicant's life and he has lived since in as responsible a manner as he could. There is no valid equitable purpose in leaving the discharge in place. g. The entirety of the applicant's military career is reflected in his personnel records, medical records, and personal affidavit. Reviewing his military record shows he gave as much as he could to the U.S. Army. h. The applicant has sought to fix his life since being involuntarily separated. He has received statements from supervisors and friends attesting positively to his character and work ethic since his separation from the U.S. Army. (No statements are attached.) i. The applicant's compelling affidavit should also be considered. (No affidavit is attached.) 11. The Board should 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, regulatory requirements, 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, and the character and reason for his separation. The Board noted the facts presented above. 2. Contrary to the applicant’s attorney brief, an examination of the records shows that the applicant was charged on 7 March 2001 with 8 violations of the Uniform Code of Military Justice (UCMJ) that occurred between 31 October 2000 and 8 December 2000 which included 7 drug abuse violations. The offenses were corroborated by the applicants own admission, a urinalysis sample, and the sworn statements of other Soldiers. These events occurred over 4-plus months so there was no rush to judgement by the command. The attorney contended that the fundamental reason for the discharge was substantially deficient. There was no fully determined reason to initiate his elimination. Based on the foregoing, this contention is not supported. 3. The attorney contends that there is a procedural defect in this case. The request for administrative separation can be both command-initiated and initiated by the service- member. In this case, there was a hasty command-initiated request for separation. However, the evidence of record shows that this occurred over a 4-plus month’s period so there was not rush to judgement by the command and when presented with the 8 court-martial charges, the applicant voluntarily requested discharge in writing by his signature under AR 635-200, Chapter 10, in lieu of trail by court-martial. The command did not initiate the separation, the applicant did. 4. The attorney contends that the command did not provide rehabilitative options. However, the applicant by his signature on his voluntary request for discharge under Chapter 10 stated in writing which he signed, “Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service.” This shows that prior rehabilitation efforts were made and that the applicant terminated any further rehabilitation. It is also noted that the applicant had benefit of legal counsel during his voluntary separation processing and acknowledged this in writing by his signature in his voluntarily request for discharge under AR 635-200, Chapter 10, in lieu of trail by court-martial. 5. The attorney contends that the applicant’s UOTHC discharge is in effect inequitable and serves no further purpose. However, on the voluntary request, the applicant acknowledges that he voluntarily requested discharge under Chapter 10, in lieu of court- martial, which could impose of a bad conduct or dishonorable discharge based on the offenses. Further, the applicant acknowledged that, “I understand that, if my request for discharge is accepted, I may be discharged ‘under conditions other than honorable.’ I have been advised and I understand the possible effects of an ‘Other Than Honorable’ discharge.” So the applicant accepted the UOTHC as preferable to a bad conduct discharge. The attorney also contends in effect that the entirety of the applicant's military career shows he gave as much as he could to the U.S. Army. However, the records show that he served only 1 year, 3 months, and 8 days during which time he received no personal decorations for meritorious service or achievement (he received only an Army Service Ribbon for completing MOS training and two marksmanship badges from basic training) and he received no commendatory performance ratings. Following completion of basic training and military occupational training, he served only 5 months in an assigned unit prior to voluntarily requesting discharge under Chapter 10, in lieu of court-marital for 8 violations of the UCMJ during that period. The Board found insufficient evidence in this applicant’s records of service to warrant in-service mitigation to overcome the misconduct and there is insufficient post-service evidence to justify a clemency determination. The Board found the UOTHC character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 6. 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. 8/28/2020 X CHAIRPERSON 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 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 (Active and Reserve Components Enlistment Program) states 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. Chapter 3 prescribes basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. An RE code "3" applies to persons who have a waivable disqualification. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the separation code to be used for these stated reasons. a. The separation code "KFS" applies to Soldiers discharged for the good of the service in lieu of trial by court-martial. b. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Regular Army Soldiers and Reserve Component Soldiers. The separation code "KFS" has a corresponding RE code of "3." 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states that 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. Paragraph 3-7b states that 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. c. Chapter 10 states that a member who has committed an offense or offenses, for which the authorized punishment includes a punitive discharge, may submit a voluntary request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service. 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. //NOTHING FOLLOWS//