IN THE CASE OF: BOARD DATE: 24 June 2021 DOCKET NUMBER: AR20210007313 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 more favorable reentry (RE) code. 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 8 July 2020, with self-authored statement * DD Form 214, for the period ending 14 June 2010 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. The circumstances of his discharge were inequitable because his discharge was based on one isolated incident in 24 months of service, with no other adverse action. He made a poor decision on the night he attended a house party and consumed alcohol. He was served a brownie that contained tetrahydrocannabinol (THC) oil, he was unaware of this until the party host informed him the next day. He was frantic about the brownie and told his platoon sergeant about the situation. b. His platoon sergeant assured the applicant that no further action would be taken if he enrolled in the Alcohol and Substance Abuse Program. He took a urinalysis and tested positive for THC. He was given an Article 15 with 45 days of punishment, forfeiture of pay, and reduction in rank. He completed his punishment and was chaptered out of the military. He would like to rejoin the military and continue his journey to serve in the Army. 3. The applicant enlisted in the Regular Army on 22 August 2007. 4. The applicant accepted non-judicial punishment (NJP) on 26 January 2010, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for: * failure to go at the time prescribed to his appointed place of duty, on or about 15 December 2009 and 5 January 2010. * wrongful use of marijuana, between on or about 14 November 2009 and on or about 14 December 2009 5. A Report of Mental Status Evaluation, dated 15 March 2010, shows the applicant was deemed mentally capable to understand and participate in board proceedings deemed necessary by his command. 6. The applicant's immediate commander notified the applicant on 27 April 2010 of her intent to initiate separation actions against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, by reason of misconduct – commission of a serious offense. The applicant acknowledged receipt on the same date. 7. The applicant waived his right to consult with counsel on 5 May 2010. He was advised of the basis for the contemplated actions to separate him and of the rights available to him. He elected not to submit a statement in his own behalf. 8. The applicant's immediate commander formally recommended the applicant's separation from service, under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. 9. The separation authority approved the recommended discharge on 20 May 2010 and directed the issuance of a DD Form 257A (General Discharge Certificate). 10. The applicant was discharged on 14 June 2010. His DD Form 214 contains the following entries in: * Item 24 (Character of Service) – Under Honorable Conditions (General) * Item 25 (Separation Authority) – AR [Army Regulation] 635-200, PARA [Paragraph] 14-12c (2) * Item 26 (Separation Code) – JKK * Item 27 (Reentry Code) – 4 * Item 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) 11. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and change of RE code. The ADRB considered his request on 14 June 2011, determined he was properly and equitably discharged, and denied his request for relief. 12. The Board should consider the applicant's overall record and 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, the reason for his separation and whether to apply clemency. The Board found insufficient evidence of in- service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service and reentry code the applicant received upon separation were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX XXX XX 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. 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) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. At the time, this regulation prescribed the separation code "JKK" as the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, based on misconduct – drug abuse. Additionally, the SPD/RE Eligibility Code Cross Reference Table established RE code "4" as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that: a. 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. b. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20210007313 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20210007313 5 ABCMR Record of Proceedings (cont) AR20210007313 4