IN THE CASE OF: BOARD DATE: 18 November 2020 DOCKET NUMBER: AR20200002975 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) to show a different, unspecified, and presumably more favorable separation code. Additionally, he requests a personal appearance before the Board. 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 2 January 2020 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 he was able to reenter the Army under the separation code "JKQ." He was not chaptered out dishonorably and had previously been honorably discharged. He is trying to buy a home and get insurance. 3. The applicant enlisted in the Regular Army on 1 September 1998. He reenlisted in the Regular Army on 11 September 2001. 4. The applicant accepted non-judicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: * on 20 May 2002, for absenting himself from his unit, on or about 8 May 2002, and for disobeying a lawful order, on or about 23 April 2002 * on 25 November 2002, for signing a false official record, between on or about 7 October and on or about 9 October 2002 5. A mental status report, dated 11 March 2003, shows the applicant was psychiatrically cleared for administrative action deemed appropriate by command. 6. Before a summary court-martial on or about 27 March 2003, at Bamberg, Germany, the applicant was found guilty of operating a vehicle while drunk, and for leaving the scene of an accident with three subordinate Soldiers in the car, without making his identity known, on or about 13 February 2003. His sentence included forfeiture of two thirds of his pay for one month and reduction to the rank/grade of private/E-1. 7. The applicant's immediate commander notified the applicant on 31 March 2003 that he had initiated actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. 8. The applicant's immediate commander formally recommended the applicant's separation from service on 1 April 2003, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 9. The applicant consulted with counsel on 2 April 2003 and was advised of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, Chapter 14 and its affects; of the rights available to him; and of the effect of any action taken by him in waiving his rights. The applicant waived the rights available to him. He further acknowledged he understood he may expect to encounter substantial prejudice in civilian life if his service was characterized as less than honorable. He elected not to submit a statement in his own behalf. 10. The separation authority approved the recommended discharge action and directed the issuance of a DD Form 257A (General Discharge Certificate). 11. The applicant was discharged on 12 April 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. His DD Form 214 he was issued confirms his service was characterized as under honorable conditions (general) as his separation code was "JKQ." 12. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, implemented Department of Defense (DoD) policy for standardization of certain entries on the DD Form 214 and was revised to update the separation codes to be used and the authorities and reasons for their use and control. 13. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 and the reason for his separation. The Board found insufficient evidence of in-service mitigation to overcome the misconduct. 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. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. 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): A review of the applicant's record shows his DD Form 214, for the period ending 12 April 2003, is missing important entries that affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries in Item 18 (Remarks): * IMMEDIATE REENLISTMENTS THIS PERIOD: 980901–010910; 010911– 030412 * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 980901 UNTIL 010910 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-5-1 provides that separation codes are three-character alphabetic combinations that identify reasons for and types of separation from active duty. The version of the regulation in effect at the time provided that the separation code "JKQ" was the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, by reason of misconduct (serious offense). 4. 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. Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences 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 considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 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// ABCMR Record of Proceedings (cont) AR20200002975 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1