IN THE CASE OF: BOARD DATE: 2 July 2020 DOCKET NUMBER: AR20190012873 APPLICANT REQUESTS: Correction of his record to: * upgrade his general, under honorable conditions discharge to an honorable discharge * change his Re-entry (RE) code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * Airborne School Diploma, dated 23 June 2017 * DA Form 705 (Army Physical Fitness Test (APFT) Scorecard) * Prime for Life Certificate, dated 7 June 2018 * Chapter 14-12c packet and allied documents, dated 3 August 2018 * Memorandum, Subject: Matters on Behalf of the applicant, dated 10 August 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 12 September 2018 * Self-authored letter * Character letter, dated 12 September 2019 * Enlisted Record Brief (ERB) * Enlistment physical and allied documents * Medical records FACTS: 1. The applicant states his request for a discharge upgrade comes from the fact he truly believes certain actions taken by his command were unjust. He is requesting to change his DD Form 214 with an opportunity to reenlist. 2. A review of the applicant’s official records show the following: a. On 21 September 2016, the applicant enlisted in the Regular Army. b. On 24 July 2018, the applicant underwent a mental health evaluation. His records contain a DA Form 3822 (Report of Mental Status Evaluation) that indicates he was screened for post-traumatic stress disorder, depression, traumatic brain injury, substance abuse and sexual trauma. The report indicated he had normal behavior; cognition, perceptions, and impulsivity. His behavioral health diagnosis was cannabis abuse, uncomplicated. He had no other medical diagnoses. He had no duty limitations due to behavioral health reasons, and he currently met the medical retention standards, and was cleared for administrative actions. c. On 22 August 2018, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) paragraph 14-12c(2). He cited his reasons as misconduct – abuse of illegal drugs. d. The applicant acknowledged receipt of the notification of his proposed separation action. It is presumed he consulted with counsel who advised him of the basis for the contemplated separation and its effects, the rights available to him and the effect of a waiver of his rights. He made the following choices: * he was not entitled to consideration of his case by an administrative separation board * he was advised of his right to submit a conditional waiver of his right to have his case considered by an administrative separation board * he was not entitled to a personal appearance before an administrative separation board * he elected to submit statements on his behalf * he waived consulting counsel and representation by military counsel and/or civilian counsel at no expense to the Government * he could expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued * he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he may encounter substantial prejudice in civilian life e. On 10 August 2018, the applicant provided a statement on his behalf that stated: (1) Right before he joined the Army in 2016, he admits he was at the lowest point in life. He had no clear direction or guidance from anyone; however, he had hopes and ambitions and looked to make a better life. He was from Norfolk Virginia where a lot of his family and friends did not make it out. He knew he would have the same story if he did not make a decision, and fast, because time waits for no man. After deciding to join the Army he actually started to feel a sense of purpose, a feeling of pride that was indescribable, knowing that he was serving for a greater purpose than himself. This is something he was not quite used to but became eager to begin his career. (2) While in training, he realized that the Army was where he belonged. He began to separate from the majority of his peers as he began to want to do more and more to further his career. He volunteered for airborne school, then broke his wrist in training right before his physical. He was told the chances of him getting to do it again were slim to none. However, he stayed motivated, worked on his rehab, and still got his airborne wings. When some recruiters from the 75th Ranger Battalion came to their class to tell them about the opportunities to be a Ranger, he knew he wanted to be part of this elite group. He signed up with no hesitation. (3) He had dedicated his all to be a part of the organization. He had been a part of three classes and in each class he improved in every single event. He graduated last December after being in training for over a full year, and he was ashamed to say that anxiety had become a part of his everyday life. Beginning in January he was using a substance called Cannabidiol (CBD) in a vape device, not knowing the substance was illegal. He relied on the professional looking website and its assurances that the substance was perfectly legal. He made a mistake that could cost him everything he had worked for and send him back to the streets of Norfolk. He realized now that he should have used his resources better and been more careful, especially when under stress because that is what their jobs entail on a daily basis. He explained this to Lieutenant Colonel (LTC) E- during his Article 15, and was told he was not guilty and would be given a second chance. He would not disappoint him. (4) Although he knows he was ultimately responsible for his actions, he would never have knowingly risked his career and future so stupidly. This is a lesson that he would grow from regardless of the decision made. He is a man of integrity, he acknowledged his wrongs, and he sincerely apologized to his unit, his fellow Soldiers and the command for putting them all through this. He has made some poor choices and the stress of this separation has weighed on him, but no one can say he does not work hard on a given task. He feels alone in this situation, but he has managed to stay positive. He believes he has great potential to help wherever he was sent, and he does not believe that this one decision represents who he truly is. f. Subsequent to this acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14- 12c(2). He cited his reasons as misconduct – abuse of illegal drugs. His immediate commander recommended a general, under honorable conditions characterization of service. This memorandum also shows the intermediate commander and separation authority were not bound by his recommendation as to the characterization of service. g. On 5 September 2018, the separation authority approved the applicant’s separation in accordance with AR 635-200, paragraph 14-12c(2), and ordered the applicant discharged his characterization of service be general, under honorable conditions. h. On 12 September 2018, the applicant was discharged from active duty under the provisions of AR 635-200, paragraph 14-12c(2) with a general, under honorable conditions discharge. He served 1 year, 11 months, and 22 days net active service. DD Form 214, item 26 (Separation Code) shows JKK, and item 27 (Reentry Code) shows 4. 3. The applicant provides: a. Airborne School Diploma showing the applicant completed the Airborne Course. b. DA Form 705 showing the results of the applicant APFTs. c. Prime for Life Certificate showing the applicant completed 20 hours of drug risk reduction. d. Chapter 14-12c(2) initiation memorandum showing the applicant’s immediate commander had recommended an honorable characterization of service. e. Self-authored letter that states: (1) His general discharge has resulted in injustice. Since his discharge, life has been really hard for him. Actually harder than expected, he has applied for other Government jobs that match his background with special operations and has been turned down because his discharge says misconduct (drug use} which does not describe him at all. It is the most embarrassing thing to have to carry with his name despite his skill set and sacrifices made. He has been turned down from many jobs and was denied unemployment twice. He has applied to the sheriff's department for two different cities and he was told he was ineligible for two years because of his discharge. (2) The first job he was able to get was a dishwasher for a country club for $9.00 an hour and to think he was just serving his country as a Ranger months before. He received his commercial driver’s license permit while he served as well, but he was discharged before he could renew it so he had to do it again as a civilian. While he was in 3rd Ranger Battalion he was having meetings with the Secret Service considering joining their team. The whole discharge process destroyed his peace of mind and many opportunities that could have been in his future. His case resulted in injustice for many different reasons other than what is just on paper, but the paperwork as the board will see speaks for itself. He was specifically told by "LTC E-" that he was not guilty of all specifications and he would be processed to his unit. He then told him to be on his best behavior because he put his name on the line for him. He was greatly thankful and from that moment forward he knew he had to prove himself again which he was fine with. However, immediately after that Friday, many people were not happy with his decision so he became a target. (3) As paperwork shows he received 3-4 counseling statements within the first couple of days. His question to the Board would be, does it make sense that the day after he spoke with LTC E- and gave him his word as he gave him his, he would blatantly disrespect his kindness to allow him to stay in the military by getting counseling after counseling? He was isolated from a brotherhood he worked so hard to be a part of. Even friends that he had made along the way were "risking" their careers to be seen with him. There were many comments made, not to mention he was not permitted to see his family during the whole process. Also, what makes this case unique is his company was having a change of command during the process. Having a new company commander come in and take over his case was both good and bad. The commander spoke to him many times during the process explaining to him how difficult it was for him to be in the position he was in because he did not see the person that others in the company described him as. (4) He then also explained how there were unhappy people in his ear pushing to get him out. This bothered him so much because the whole time they were telling him that he was not going to be discharged but they knew they were trying to get him out. Soldiers with other companies knew that they were getting discharged and had proper time to prepare for transition. When he was told he was being discharged he was speechless, but more importantly, he would like the Board to pay attention to the fact that his commander recommended him for an honorable because he believed that the outcome was wrong and he wanted to help, however as paperwork shows the commander having to change his recommendation on a new packet. He was told to just shred the other one but he kept it because it shows that he had to side with the other officers in the end. Prior to finding out about the discharge he was instructed to do charge of quarters every day from 0600 until 1600 which hindered his ability to receive any legal advice because of business hours. At the time he could not see what was going on because he trusted in the word of LTC E-. Though an unfortunate ending of his career he can say joining the military was one of the best things that happened to him and honestly he did not expect to like it. Shortly after joining he knew that he had made the right decision. The honor that each member upholds is tremendous along with all of the love, support, and appreciation we get from many citizens of our amazing country. He had shifted his mindset once he truly understood the mission of the service. He would like to point out that from the moment he got in to the last day of service, he had always pushed himself to go above and beyond and that shows in every event he was a part of. He gave his all to be a part of an organization that he believed in so much to find out that not all of the Army values were met during his chapter process. He feels as if he has been stripped of everything. (5) This has not just hurt him, it has hurt his family, his father to be exact. There are often times he says "I wish you were still in because "or" I wish you had never got out because." He knows he does not try to bring it up the way it sounds but there is obviously that deep disappointment in the whole situation. Becoming a Ranger was the proudest moment for his dad. He traveled a total of 20 hours for his graduation and still has their picture from that day on the wallpaper on his phone. He mentions this because he has to relive the experience often. When he is out somewhere and they offer a military discount he has nothing to show for it. He cannot get on base without one of his military friends. All of that makes him feel like an outsider and makes him feel like everything he has done was for nothing. He would like to clear his name and finally have peace. He believes his re-enlistment code should be changed from code 4. He also looks to change the status of his discharge, upgrade his Veterans Affairs benefits and be able to have a Veterans identification card. Most importantly he would like the option to reenlist and serve his country and be a testimony to influence others. (6) In addition he would like to also mention that he has completed multiple counseling and rehabilitation programs provided to him. Also within the year of him getting out of the military with the status he currently holds, he went to school and received his commercial driver’s class A license. In order to get the license it is mandatory that a drug test be taken by each applicant. The drug test consists of two parts, urine and hair follicle. He has been drug tested approximately five times since he left service for other jobs and he passed every single one. They all prove that he has been drug free. He has barely taken a Tylenol since he has been out of the service. (7) Hopefully with all the information provided the Board will see he truly did not have a drug problem. Sir/Ma'am even outside of the military he does not have anything on his record. He did not know how to legally defend himself. He brought in the CBD bottle voluntarily thinking it would help him and prove he was telling the truth. Although it did exactly that, it also added a possession charge to the possible conviction. He did not ask for a personal attorney or refuse to cooperate at any moment during the investigation. He never once admitted to knowing that the substance contained tetrahydrocannabinol (THC) as the investigators said. They were very slick with their questions. Until recently there were no policies in place for CBD. There has been so many misunderstandings about CBD the military had to personally address it in new policy letters. However as mentioned before the CBD he was using was falsely advertised. (8) The whole process was mentally and physically draining. He became very depressed as he began to feel unfairly treated. In efforts to remain positive he joined the base basketball team, being personally chosen by one of the coaches. It was hard for the team and himself when the news came back that he would no longer be able to play in the first upcoming games of the season and worse would no longer be able to put on his uniform. He had made a lot of new friends through playing basketball. Outside of his unit he was treated differently by others than how his command did. It was absolutely embarrassing to see "misconduct: drug abuse, on his DD Form 214. He has tried to talk to many attorneys and no one can seem to help him with this situation. (9) He has accepted his mistake and was looking to move forward in making things right at his new unit. That is what was promised to him. He would like the opportunity to rejoin and use this as an amazing testimony to empower and motivate Soldiers to be better. f. Character reference authored by the applicant’s father that states “he has always taught the applicant to be a leader and excel in life. He had never seen him so proud to be in the Army, and had so many plans to be a leader in the Army. He always performed as a leader in school and church, and knows if he is given a second opportunity to reenlist he would be able to complete his dream to be a great Soldier. g. ERB providing a brief of the applicant’s service record. It shows he graduated from Airborne and Ranger courses and served as a Ranger. h. Enlistment physical and allied documents completed leading to the applicant’s enlistment in the Army. i. Medical records showing the applicant reported never having a history of using alcohol or other drugs/substances and an unremarkable medical history. 4. See applicable references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s statement, 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 (ERB), the nature of his misconduct and the reason for his separation. The Board found insufficient evidence of in-service mitigation for the applicant’s misconduct. The Board considered the statement from the applicant’s Father, but found insufficient additional evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service 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 : : : 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. ? REFERENCES: 1. AR 635-200 (Active Duty Enlisted Administrative Separations) a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, convictions by civil authorities, desertion and absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation. b. Paragraph 3-7(a) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. c. Paragraph 3-7(b) states 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. 2. AR 635-5 (Separation Documents) in effect at the time states the DD Form 214 is a summary of a soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. * item 26; obtain the correct entry from AR 635-5-1 (Separation Program Designator (SPD) Codes) which provides the corresponding SPD code for the regulatory authority and reason for separation * item 27, AR 601-210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army and U.S. Army Reserve reentry eligibility and provides regulatory guidance on RE codes 3. AR 635-5-1 (SPD Codes) shows SPD Code JKK (Misconduct (Drug Abuse) the regulatory authority is AR 635-200, paragraph 14-12c(2). 4. SPD/RE Codes cross reference table shows RE code 4 is the appropriate code for SPD JKK. 5. AR 601-210 (Regular Army and Army Reserve Enlistment Program) states RE code 4 applies to a person separated from the last period of service with a nonwaivable disqualification. The member is ineligible for enlistment. RE code 3 applies to a person who is not considered fully qualified for reentry or continuous service at the time of separation, but disqualification is waivable. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and 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, 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012873 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1