IN THE CASE OF:  BOARD DATE: 16 August 2021 DOCKET NUMBER: AR20210007733 
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 narrative reason for separation. 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 18 September 2020, with self-authored statement 

. 
Miscellaneous Documents from Official Military Personnel File (36 pages) 

. 
Service Treatment Records (55 pages) 

. 
DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 27 June 2018 

. 
U.S. Department of Justice, Firearm-Related Challenge Letter, dated 2 August 2019 

. 
Letter from Office of the Surgeon General, Chief, Patient Administration, dated 7 August 2019 

. 
Character Reference Letters, dated between 1 April 2020 and 17 June 2020 

. 
Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 17 June 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: 


a. 
His transition into the Army was going well until he went home on leave. While at the airport saying goodbye to his family, his grandmother told him that his mother’s health had been getting worse. When he got back to Fort Drum, he told his team leader about the situation and he said he would bring it up to the chain of command. 

b. 
This is when a series of harassing events began to take place, beginning with the applicant receiving numerous developmental counseling forms. There seemed to be a pattern of actions and reactions that lead to these counseling statements that were the basis for his discharge action. If he didn’t agree or wrote a remark in disagreement, the harassment tended to get worse or he was singled out for any minor infraction. 

c. 
After the harassment went on for several months and no further action had been taken regarding his compassionate reassignment request, his demeanor began to deteriorate.  His command sent him for evaluation and based on his answers to the intake questions, he was recommended to be seen by a mental health provider.  He was in the hospital for 12 days and during that time, he was getting better and showing progress. 

d. 
After discharge from the hospital, he returned to his unit and within a week or so, he was assigned for transition out of the Army.  Since his discharge and return home, he has been doing well and is working towards earning his associate’s degree in criminal justice. He has wanted to re-enlist and has tried many avenues in the hopes of being allowed to serve again. He has recently found out that he can no longer become a police officer due to his hospitalization.  He has been denied the ability to purchase a weapon, which is vital to being a law enforcement officer. 

e. 
The circumstances resulting in his discharge, which began with a request for compassionate reassignment, are unjustly impacting his ability to serve not only his country as a military member, but also serving in his community as a law enforcement officer. 


3. 
The applicant enlisted in the Regular Army on 24 July 2017. 

4. 
The applicant was formally counseled on several occasions between 14 February and 30 April 2018, for numerous infractions including but not limited to: lying to a non­commissioned officer (NCO), disrespect towards a NCO, failure to follow instructions, and stealing equipment from a fellow Soldier. 

5. 
A review of the available medical documents indicate the applicant was being treated for depression and/or other behavioral health issues in March and April 2018. A DA Form 3822 (Report of Mental Status Evaluation), dated 30 April 2018, shows the applicant was psychiatrically cleared for administrative action by command. 

6. 
The applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, by reason of unsatisfactory performance. 

7. 
The applicant consulted with counsel on 22 May 2018 and 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 commander formally recommended the applicant's separation from service, under the provisions of Army Regulation 635-200, Chapter 13. The separation authority approved the recommended discharge and directed the issuance of an under honorable conditions (general) discharge. 

9. 
The applicant was discharged on 27 June 2018.  His DD Form 214 confirms he completed 11 months and four days of net active service and contains the following entries in: 

. 
Item 24 (Character of Service) – Under Honorable Conditions (General) 

. 
item 25 (Separation Authority) – [Army Regulation] AR 635-200, CHAP 13 

. 
item 26 (Separation Code) – JHJ 

. 
item 27 (Reentry Code) – RE-3 

. 
item 28 (Narrative Reason for Separation) – Unsatisfactory Performance 



10. 
The applicant provides: 


a. 
Character reference letters from family members attesting to his determination to succeed, desire to serve, and focus. 

b. 
A statement in support of claim, wherein the applicant states that he was under extreme stress while serving and his only option to get close to his family was to accept the general discharge. 


11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. 
BOARD DISCUSSION: 
1. 
After review of the application and all evidence, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined there was insufficient evidence to grant relief. 

2. 
By split vote, the Board majority found that the evidence available for review indicated that the applicant received proper counseling on multiple occasions and afforded the opportunity to correct his behavior which included lying to an NCO and stealing from a fellow Soldier. The dissenting Board member, noting that the counseling seemed excessive and began only after the applicant informed his chain of command 

about his family situation, found in favor of the applicant. 

3. 
The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 


BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING ::XX :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. 
X 
CHAIRPERSON 
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): Not Applicable 
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 (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 "JHJ" was the appropriate code to assign to Soldiers separated under the provisions of Chapter 13 of Army Regulation 635-200, based on unsatisfactory performance. Additionally, the SPD/Reentry (RE) Code Cross Reference Table established RE code "3" as the proper RE code to assign Soldiers separated under this authority and for this reason. 

4. 
Army Regulation 635-200 sets forth the requirements and procedures for the separation of enlisted personnel. The version in effect at the time provided that: 


a. 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 13 provides for separation due to unsatisfactory performance when in 
the commander’s judgment the individual will not become a satisfactory Soldier; 
retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 
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. 


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