ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 6 August 2019 DOCKET NUMBER: AR20190008519 APPLICANT REQUESTS: His under honorable conditions (general) discharge be upgraded to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 5 April 2019 * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 5 April 2019 * an undated, self-authored personal statement * copies of his personal award certificates and letters of commendation * three 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: a. He has tried relentlessly to reenlist and to continue his military career, having come from an extensive line of career military family members. This discharge remains a very deep scar on what little he was able to achieve while in service. He would very much wish to have the honor to look his children in the eye and tell them their father was proud to be in the military and was discharged honorably. There are also other Veteran benefits that he is unable to access and utilize due to said separation specification. b. In his personal statement, he outlined his service and the reason for his misconduct. He understands he acted out of character, as well as that of a U.S. Soldier, although there were extenuating circumstances. He indicated he was raised by his grandmother and when he received word she was seriously ill, he requested emergency leave but was denied leave due to a pending deployment to Iraq. c. In speaking with other Soldiers, he was told he had two options: to be absent without leave for an extended period or to test positive during a urinalysis. He elected to go for the positive drug test option so that he could get to his grandmother prior to her death. 3. The applicant enlisted in the Regular Army on 26 January 2000. He served in Korea and Germany and was awarded and/or received the following accolades: * he received a Certificate of Achievement as a Master Shooter * he received a Letter of Commendation on 5 June 2000 * he received a Certificate of Achievement on 7 June 2000, for being the Distinguished Honor Graduate * he was awarded the Army Achievement Medal on 18 December 2001 4. The applicant received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 11 January 2002, for driving under the influence of alcohol, on or about 22 November 2001 * on 28 May 2002, for wrongfully using marijuana, between on or about 21 April and 20 May 2002 * on 21 August 2002, for wrongfully using marijuana, between on or about 11 May and 11 June 2002 5. The applicant's commander notified the applicant on 16 September 2002, of his intent to initiate actions to separate him under the provisions of Army Regulation 635- 200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c, by reason of his illegal drug use. 6. The applicant consulted with legal counsel on 16 September 2002. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than 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. 7. The separation authority approved the applicant's discharge on 17 September 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – serious misconduct, illegal drug use. 8. The applicant was discharged on 21 September 2002 under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. a. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under honorable conditions (general), his separation code was "JKK," and his reentry (RE) code was "3." b. His DD Form 214 does not list his significate awards or decorations, including the Army Achievement Medal, National Defense Service Medal, Global War on Terrorism Service Medal, and the Korea Defense Service Medal. 9. The applicant provides: a. A letter of support from his former fire support section chief, who described the applicant as an impressive Soldier. His duty performance was exemplary and he maintained his physical standards despite being on a physical profile. He excelled at numerous positions of responsibility and at the time of the writing, was before the Soldier of the Month Board. The section chief stated he could depend on the applicant no matter what mission he was assigned. b. Letters of support from the St. Lucie Board of County Commissioners and his Congressman, both of whom support the applicant's request to reenter the military, being impressed with his desire to continue his military service. 10. The Board should consider the applicant's statement, provided evidence, and the entirety of his record 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 and reasons for his misconduct, the frequency and nature of the misconduct, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors for the misconduct. The Board considered the letters of reference he provided, attesting to both his in-service and post-service performance, in support of clemency. After a complete review of the case file and based on a preponderance of the evidence, the Board found that there was insufficient evidence to warrant clemency and determined that the character of service the applicant received at discharge was not in error or unjust. The Board concurs with the corrections stated in the Administrative Note(s) below. 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: With the exception of the corrections stated in the Administrative Note(s) below, 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): A review of the applicant’s service record supports the amendment of his DD Form 214 for the period of service ending 21 September 2002 by adding to item 13 the following: - Army Achievement Medal, - National Defense Service Medal, - Global War on Terrorism Service Medal, and the - Korea Defense Service Medal. - 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 601-210 (Active and Reserve Components Enlistment Program), prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. 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 for enlistment unless a waiver is granted. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It provides that separation code "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (drug abuse). The RE code "3" or "4" was the appropriate RE code assigned to members separated under these provisions with a separation code of "JKK." 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 provides 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 14-12c(2) states abuse of illegal drugs as serious misconduct. It continues; however, by recognizing that relevant facts may mitigate the nature of the offense. Therefore, a single drug abuse offense may be combined with one or more minor disciplinary infractions or incidents of other misconduct and processed for separation under paragraph 14-12a or 14-12b as appropriate. 6. 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) AR20190008519 2 1