IN THE CASE OF: BOARD DATE: 25 May 2021 DOCKET NUMBER: AR20200008836 APPLICANT REQUESTS: * an upgrade of his under other than honorable conditions (UOTHC) discharge * to change his separation code, reentry code, and narrative reason * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for period ending 28 July 2006, to reflect the Combat Infantryman Badge (CIB) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * DD Form 214 for period ending 28 July 2006 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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. His request is related to Operation Iraqi Freedom, in that he suffered from post- traumatic stress disorder (PTSD), traumatic brain injury (TBI), and anxiety. Upon arriving at Fort Drum, NY, he was given housing for his spouse and it was also where he resided. After a few months of being home from Iraq, he asked his wife for a divorce. Once initiated, it led to his wife's infidelity with his section sergeant. He lived off-post with the same sergeant who slept with his wife. He was injured during physical training which led to his addiction to pain pills. He did not receive assistance to stop his addiction. b. Before his leg injury, he suffered with undiagnosed PTSD, TBI, anxiety, and low back pain. Upon discovery of his wife and her actions, he immediately reported it to his chain of command Sergeant First Class Ma_. In the end, Staff Sergeant H_ was issued a letter of reprimand while he struggled alone with his issues and eventually was forced out of the military. He feels his addiction along with his mental state led to darker days. Before any trouble was reported, he was recovering from an injury that is yet to be acknowledged, an injury he still struggles with. His DD Form 214 is missing awards and is incomplete. He had two service periods that were combined into one. He reenlisted in Iraq and would have ended his first period of service. The awards presented are missing his Combat Infantryman Badge. He asks the Board to refer back to his treatment records and report of his wife's actions along with his section sergeant's letter of reprimand (unavailable for review). 3. On 22 January 2002, the applicant enlisted in the Regular Army for a term of 3 years. 4. After he completed his initial entry training, on 26 May 2002, he was assigned to Fort Hood, TX, in the military occupational specialty (MOS) 11C (Indirect Fire Infantryman). While assigned to Fort Hood, he was deployed in Iraq from 10 March 2004 to 10 March 2005 and served as a Gunner. 5. On 7 March 2006, the applicant accepted nonjudicial punishment (NJP): a. He was found guilty of: * being disrespectful in language towards Sergeant Mu_ a noncommissioned officer (NCO) by saying to him "f_ em, f_ all of them" * willfully disobeying an order from SFC Ma_, not to go to his apartment with informing him * being derelict in the performance of his duties in that he was found sleeping during the duty day b. His punishment consisted of reduction to Private E-2; forfeiture of $713.00 pay for two months, forfeiture or $713.00 for one month suspended until 6 April 2006; 45 days extra duty; 45 days restriction; and an oral reprimand. 6. On 2 March 2006, he underwent a medical examination. a. In his DD Form 2697 (Report of Medical Assessment), MEDCOM Form 717R (Depression Outpatient Documentation), and DD Form 2807-1 (Report of Medical History), the applicant indicated he was worse since he last assessment/physical examination. He was out of duty for three days due to compartment syndrome and had surgery. He was on profile for his right leg and lower back due to compartment release surgery. The applicant also indicated he: * felt down, depressed or hopeless * had trouble falling or staying asleep, or sleeping too much * he felt tired or had little energy * had a poor appetite or overeating * he felt bad about himself or he was a failure or had let himself or his family down * had difficulty doing his work, taking care of things at home or getting along with others * had impaired use of his arms, legs, hands, or feet * need to use corrective devices such as prosthetic devices, knee bracelet, or back supports * had recurrent back pain or back problems * had insomnia b. In the medical examination, the doctor found during his clinical evaluation the applicant's lower extremities, and spine, other musculoskeletal was abnormal. He had compartment syndrome surgery in the right leg, LBP (lower back pain) with radiculopathy to RLE (right lower extremity), and nicotine dependence. He recommended that he continued with the current medical plan. He further indicated the applicant was depressed and was given a MEDCOM Form 717R and he had leg and lower back pain. The examiner cleared him for separation. 7.. He underwent a mental status evaluation. The psychiatrist determined he had the capacity to understand and participate in the proceedings; he was mentally responsible, he met retention requirements of AR 40-501. Based on the Diagnostic and Statistical Manual of Mental Disorders 4th Edition (DSM-IV) criteria and clinical interview, he diagnosed the applicant with alcohol dependence, in early remission, antisocial traits, and compartment syndrome (right leg). He psychologically cleared the applicant for administrative action deemed appropriate by command. 8. On 5 May 2006, the applicant was counseled to inform him of the pending separation action against him under Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) for commission of a serious offense and of the possible adverse effects if he received less than an honorable discharge. 9. On 29 June 2006, the applicant was convicted by summary court-martial of: * five specifications in violation of Article 86, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty * three specifications in violation of Article 90, UCMJ, for willfully disobeying a lawful command from his commissioned officer * one specification in violation of Article 91, UCMJ, of willfully disobeying a noncommissioned officer * two specifications in violation of Article 112a, UCMJ, for wrongfully using cocaine between 8 February 2006 and 6 March 2006 and marijuana between 30 March 2006 and 26 April 2006 10. The applicant’s immediate commander notified the applicant that he was initiating separation actions against him under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, for commission of a serious offense. The reasons for the proposed action were on divers occasions he failed to go to his appointed place of duty; he disobeyed a lawful order from his superior commissioned officer; he failed to obey a lawful order from a noncommissioned officer; he made a false official statement; and he wrongfully used cocaine and marijuana. He received a Field Grade Article 15 for being disrespectful to an NCO, disobeying a NCO, and dereliction of his duties. 11. The applicant acknowledged he had been notified of the pending separation action against him and he had been advised of the basis for the contemplated action. He elected to submit a statement on his own behalf (statement unavailable) and he waived his right to appear before an administrative separation board. 12. The commander's recommendation, 29 June 2006, states there were not extraordinary rehabilitative steps taken with this Soldier outside the documentation in his packet. The commander indicated that the applicant reenlisted on 2 March 2005 for a term of 5 years. This is consistent with his Enlisted Record Brief, which shows his expiration term of service as 1 March 2010. 13. His chain of command recommended approval of the separation and on 5 July 2006 the appropriate commander approved the separation and directed he be discharged with an under other than honorable conditions discharge. 14. His pre-separation counseling checklist shows he did not receive separation counseling prior to his discharge. It states "Soldier is incarcerated in the Jefferson County Correctional Facility for an undetermined amount of time. Will be facing civilian charges on his day of discharge [with an] estimated sentence time of 4-6 years." 15. On 28 July 2006, the applicant was discharged accordingly. He completed 4 years, 6 months, and 7 days of his net active service this period; 1 year, 4 months, and 27 days of his 5-year contractual obligation. His DD Form 214 shows: * He was awarded or authorized: o Army Good Conduct Medal o National Defense Service Medal o Global War on Terrorism Expeditionary Medal o Global War on Terrorism Service Medal o Army Service Ribbon * Remarks: Service in Iraq 20040310 – 20050310//Member has completed first full term of service * Character of Service: Under Other Than Honorable Conditions * Separation Authority: AR 635-200, paragraph 14-12c(2) * Separation Code: JKK * Reentry Code: 4 * Narrative Reason for Separation: Misconduct (Drug Abuse) 16. In 2015, the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge. He based his request on similar reasons he indicated in his petition to the ABCMR. In addition, the case report indicated that the applicant stated abuse of marijuana, cocaine, and heavy drinking led to his driving while intoxicated. The report states per the medical officer, based on the information available for review at the time to include a review of his electronic medical record, he had no mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. The ADRB denied the request, finding the separation was proper and equitable. 17. The applicant requests an upgrade and correction of his DD Form 214 to reflect the Combat Infantryman Badge. He states his request is related to Operation Iraqi Freedom from 19 March 2010 to 31 August 2010 in that he suffered from post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and anxiety. After a few months of being home from Iraq, he asked his wife for a divorce. Once initiated, it led to his wife's infidelity with his section sergeant. He was also injured during physical training which led to his addiction to pain pills. He did not receive assistance to stop his addiction. a. His record shows he enlisted and reenlisted in the Regular Army. He accepted one NJP and one summary court-martial for various offenses to include wrongfully using cocaine and marijuana. The applicant held the MOS 11c (Indirect Fire Infantryman) and he did deploy to Iraq. He completed 1 year, 4 months, and 27 days of his 5-year contractual obligation. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. c. In regards to his contention that he suffered for PTSD, TBI, and other mental health conditions. (1) His available record does show he was diagnosed with alcohol dependence, in early remission, antisocial traits. He indicated during his medical examination that he had a degree of feeling down, depressed or hopeless; trouble falling or staying asleep; or sleeping too much; feeling tired or had little energy; and feeling bad about himself or he was a failure or had let himself or his family down. There is no evidence in his available record he was diagnosed with PTSD or a TBI, nor did he present any documentation to support his contention. (2) The Office of the Undersecretary of Defense for Personnel and Readiness provides guidance that Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, Traumatic Brain Injury (TBI), post- traumatic stress disorder (PTSD), sexual harassment and sexual assault. The veteran’s testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. d. In regards to his contention that he was addicted to drugs, there is no evidence in his available record nor did he provide any evidence to support his contention. He did test positive for marijuana and cocaine. AR 600-85 (Personnel General – Army Substance Abuse Program (ASAP)) provided all Soldiers, who are identified as drug abusers, without exception, will be referred to the ASAP counseling center for screening. Nondependent drug users will be enrolled in the ASAP if such enrollment is clinically recommended and the unit commander concurs. Soldiers diagnosed as drug dependent should be detoxified and given appropriate medical treatment. The objective of rehabilitation for military personnel was to restore identified individuals to effective duty and identify individuals who cannot be rehabilitated within the scope of this regulation. If the service member is declared a rehabilitation failure, he or she will be processed for separation from the service under the provisions of AR 635-200. e. In regards to his contention his DD Form 214 is missing his Combat Infantryman Badge; there is no evidence in his available record to show he was awarded the CIB nor did he provide evidence to show he was awarded the CIB. f. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), Chapter 14 (Misconduct), paragraph 14-12c, was a separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM). The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. A medical examination and a mental status evaluation are required when a Soldier is being processed for discharge under paragraph 14-12c. g. According to the MCM, Article 90, UCMJ, for willfully disobeying a lawful command from his commissioned officer; Article 91, UCMJ, for willfully disobeying a lawful order from a noncommissioned officer; and Article 112a, UCMJ, wrongful use, possession, etc., of controlled substances; all included punishments with a punitive discharge. Article 86, UCMJ, absence without leave as in failing to go at the time to his appointed place of duty; Article 91, UCMJ, disrespect towards an NCO; and Article 92, UCMJ, being derelict in the performance of duties; these violations did not include punishments with a punitive discharge. h. AR 635-5-1 (Personnel Separations – Separation Program Designators (SPD)), provides SPD Code "JKK" is designated as the code for Authority: AR 635-200, chapter 14-12c(2) and Reason: "Misconduct (Drug Abuse)." i. AR 601-210 (Personnel Procurement – Regular Army and Army Reserve Enlistment Program), provides: * RE-1: Person completing his/her term of active service who is considered qualified to reenter the U.S. Army; qualified for enlistment if all other criteria are met * RE-3: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable * RE-4: Person separated from last period of service with a nonwaivable disqualification; ineligible for reenlistment j. AR 600-8-22 (Military Awards) provides a Soldier must meet the following three requirements for award of the CIB: (1) be an infantryman satisfactorily performing infantry duties, (2) be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and (3) actively participate in such ground combat. Campaign or battle credit alone is not sufficient for award of the CIB. 18. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. 19. MEDICAL REVIEW: a. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While 2021 VA records indicate the applicant’s PTSD diagnosis is now partially combat related, the applicant reported combat related symptoms did not start until 2019; 13 years’ post-service. Moreover, the Compensation and Pension (C&P) exams continue to determine his symptoms and behaviors are not service incurred or aggravated; rather a continuation of pre-enlistment misconduct. Consequently, the C&Ps have not service connected the applicant for PTSD or any behavioral health condition. Although liberal consideration was considered and applied, after reviewing medical and supporting records, this advisor concurs with the C&P findings; the applicant’s discharge was related to a characterological disorder that existed pre-enlistment and has continued post-service. Accordingly, a change is not recommended. b. The applicant was discharged on 28 July 2006 under Chapter 14-12c (2), Misconduct Drug Abuse, with an Under Other than Honorable characterization. The basis for separation is on divers occasions the applicant failed to go to his appointed place of duty, disobeyed a lawful order from a superior commissioned officer, failed to obey a lawful order from a noncommissioned officer, made false official statements, and wrongfully used cocaine and marijuana. The applicant requests a characterization upgrade and changes to the separation code, reentry code, and narrative reason for separation asserting undiagnosed PTSD and TBI, addiction to prescribed pain medication, and wife’s infidelity led to his misconduct. c. In 2015, the applicant applied to ARBA with the same assertions and requests. The medical advisor indicated there were no mitigating behavioral health or medical conditions. The Board determined the applicant’s discharge was proper and equitable, denying relief. d. In January 2006, the applicant was referred to the Family Advocacy Program (FAP) as the offender of spousal abuse. The applicant denied abusing his spouse, noting he “only threw spouse’s cell phone when she was attempting to call Command” during a domestic dispute. The applicant asserted his wife was lying; he was moved to the barracks. The following week, the couple requested marital therapy indicating they wanted to stay married. The applicant reported additional disciplinary action and likely separation related to burglary charges. The applicant stated while intoxicated he’d broken into a home; however, did not have the intention of stealing. Records are void of the actual events leading to the burglary charge. In May 2006, the applicant went to behavioral health asking about a PTSD diagnosis noting pending separation for a positive urinalysis (UA) and enrollment in the Army Substance Abuse Program (ASAP). The applicant was diagnosed with Anxiety Disorder NOS and Alcohol Abuse. e. The electronic packet contains a March 2006 screening in which the applicant reported depressive symptoms. However, on the exit physical he only noted depressive symptoms with some treatment related to his divorce and chronic insomnia. The applicant had a S1 profile; there were no psychiatric limitations. A Chapter Mental Status Exam (MSE), dated May 2006, cleared the applicant for separation with diagnoses of Antisocial Personality traits and Alcohol Dependence. f. The applicant is 10% service connected for TBI; self-report of symptoms without objective evidence. The applicant is not service connected for PTSD. In June 2014, the applicant requested housing services noting he had been incarcerated from November 2013 to January 2014 with prior legal issues; driving while ability impaired (DWAI) in 2006 and 2009, burglary in 2007, and domestic violence in July 2011. The applicant noted ongoing marijuana use with no desire to stop. In 2016, the applicant reported his discharge related to committing a felony and drug use. In follow-up, he reported substance use began by age 7, involvement with gangs and selling drugs by age 14, and was in and out of juvenile hall, boot camp, group homes, or treatment centers from 11 to 17; he enlisted after release from the final placement. In March 2017, the applicant reported a history of PTSD, Anxiety Disorder, Bipolar Disorder, and ADHD. The applicant was diagnosed with Anxiety and Depressive NOS and Substance Induced Mood Disorder; the provider did not believe the applicant had PTSD. The applicant had a Compensation and Pension (C&P) exam determining the applicant he did not have PTSD; rather Antisocial Personality Disorder, Other Specified Depressive Disorder, Other Specified Anxiety Disorder, Cannabis Use Disorder, Opioid Use Disorder, Alcohol Use Disorder, and ADHD. The applicant reported his trauma involved events while he was in a gang pre-enlistment and his wife being unfaithful with a SGT. The applicant stated at one point he told his Commander that if he deployed with the SGT, “friendly fire happens all the time, if we get deployed, he isn’t coming back.” The applicant reported pre-enlistment behavioral health involvement by age 7 with diagnoses of ADHD, Bipolar Disorder, and Obsessive Compulsive Disorder (OCD). Additionally, the applicant reported as a teenager he assaulted his brother to the point he had to be hospitalized and stole a car to get away when the police arrived. The provider noted pre-enlistment misconduct included 3rd degree assault, violation of commitment to state, auto theft, and violation of probation. The applicant reported post-service, he re- engaged with the gangs and was selling drugs. Additionally, since separation, the applicant was a convicted felon receiving multiple charges to include criminal mischief, domestic violence, 3rd degree burglary, driving with a suspended license, and DWI. The provider noted while the applicant asserted deployment “bothers him,” the traumas reported were not deployment related, symptoms did not fit a trauma diagnosis, and all evidence indicated his behavioral health and conduct issues existed prior to service and not service aggravated. In August 2018, the applicant was hospitalized due to suicidality; however, left against medical advice (AMA). In October, the applicant was hospitalized and then transferred to a residential program with diagnoses of Unspecified Personality Disorder, Bipolar Disorder II, PTSD, Major Depressive Disorder (MDD), and various Substance Use Disorders. In January 2019, the applicant was transferred to a housing program with diagnoses of Mood Disorder, Personality Disorder (antisocial and borderline) and PTSD due to childhood events. The applicant voiced concurrence with a Borderline Personality Disorder diagnosis noting he did not think a prior diagnosis of Bipolar Disorder was accurate. During follow up, the applicant indicated a need to increase his service connection. In June, the applicant was hospitalized with discharge diagnoses of PTSD and Mood Disorder. The applicant reported a recent experience of finding a dead body triggered deployment memories and trauma symptoms. In August 2019, the applicant had a second C&P which upheld the previous determination. In 2021, the applicant participated in a residential program, completing in April with diagnoses of PTSD, childhood and combat; Schizoaffective Disorder, Bipolar Type; and Substance Use Disorders. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found 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 noted the applicant’s length and nature of the misconduct and the reason for separation. Based on the totality of the misconduct and, in the absence of evidence contesting to post-service achievements or letters of reference to weigh in support of a clemency determination, the Board found the character of service the applicant received upon separation was not in error or unjust. 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 (Certificate of Release or Discharge from Active Duty), for the period ending 28 July 2006, 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 to item 18 (Remarks): * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20020122 UNTIL 20050301" * "IMMEDIATE REENLISTMENTS THIS PERIOD 20050302 – 20060728" 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 Army Board for Correction of Military Records (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 (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. 3. AR 600-85 (Personnel General –– Army Substance Abuse Program (ASAP)), in effect at the time, prescribed policies and procedures to implement, administer, and evaluate the Army Substance Abuse Program. The following provisions underscore the Army's policy that drug abuse will not be tolerated and that there are serious consequences for such misbehavior. All Soldiers, to include ARNG and USAR Soldiers ordered to active duty, under Title 10 U.S. Code, who are identified as drug abusers, without exception, will- a. Be referred to the ASAP counseling center for screening. (1) Nondependent drug users will be enrolled in the ASAP if such enrollment is clinically recommended and the unit commander concurs. (2) Soldiers diagnosed as drug dependent should be detoxified and given appropriate medical treatment. These Soldiers generally do not have potential for continued military service and should not be retained. These Soldiers will be referred to a VA hospital or a civilian program by the ASAP clinician to continue (or to initiate) their treatment. b. Be considered for disciplinary action under the UCMJ, as appropriate. c. Be processed for administrative separation in accordance with AR 600-8-24 (for officers and warrant officers) and AR 635-200 (for enlisted personnel), with the exception of self-referrals. In cases where the chain of command has referred the matter to a trial by court-martial, administrative separation proceedings will be delayed until the completion of the court-martial process. 4. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), in effect at the time, prescribed the policy for enlisted separations. a. 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. 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. c. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. In a case in which a UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual for Court-Martial. d. A medical examination is required when a Soldier is being processed for discharge under paragraph 14-12c. In addition to a medical examination, a mental status evaluation conducted by a psychologist, or master-level, licensed clinical social worker, is required. 5. Per Manual for Courts-Martial, Article 90, UCMJ, for willfully disobeying a lawful command from his commissioned officer; Article 91, UCMJ, for willfully disobeying a lawful order from a noncommissioned officer; and Article 112a, UCMJ, wrongful use, possession, etc., of controlled substances; all included punishments with a punitive discharge. Article 86, UCMJ, absence without leave as in failing to go at the time to his appointed place of duty; Article 91, UCMJ, disrespect towards an NCO; and Article 92, UCMJ, being derelict in the performance of duties; these violations did not include punishments with a punitive discharge. 6. AR 635-5-1 (Personnel Separations – Separation Program Designators), in effect at the time, prescribed the specific authorities (regulatory, statutory, or other directives) and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It provides SPD Code "JKK" is designated as the code for Authority: AR 635-200, chapter 14-12c(2) and Reason: "Misconduct (Drug Abuse)." 7. AR 601-210 (Personnel Procurement – Regular Army and Army Reserve Enlistment Program), in effect at the time, prescribed eligibility criteria governing the enlistment of persons, with or without prior service in the Regular Army. Table 3-1 provided the reenlistment eligibility codes and stated: * RE-1: Person completing his/her term of active service who is considered qualified to reenter the U.S. Army; qualified for enlistment if all other criteria are met * RE-3: Person who is not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable * RE-4: Person separated from last period of service with a nonwaivable disqualification; ineligible for reenlistment 8. AR 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards. A Soldier must meet the following three requirements for award of the CIB: a. be an infantryman satisfactorily performing infantry duties, b. be assigned to an infantry unit during such time as the unit is engaged in active ground combat, and c. actively participate in such ground combat. Campaign or battle credit alone is not sufficient for award of the CIB. 9. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 10. 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 based on equity or relief from injustice. 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) AR20200008836 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1