ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210010606 APPLICANT REQUESTS: The applicant requests through attorney, * an upgrade of his general under honorable conditions discharge to honorable * correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: o his narrative reason as “Secretarial Authority” with corresponding separation code instead of “Misconduct (Serious Offense)”, and o reentry (RE) code RE-1 instead of RE-3 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney Brief * Exhibit 1 - DD Form 214 (Certificate of Release or Discharge from Active Duty) * Exhibit 2 - DD Form 1966/5 (Section VIII - Parental/Guardian Consent for Enlistment), dated 30 December 2010 * Exhibit 3 - Father’s Statement, unspecified date * Exhibit 4 - Applicant Personal Statement, unspecified date * Exhibit 5 - Drug Test Results, dated 19 November 2011 * Exhibit 6 - Un-redacted DD Form 214 * Exhibit 7 - Army Discharge Review Board (ADRB) Corrected DD Form 214 * Voided DD Form 214 * ADRB Case Report and Directive (AR20160019065), dated 21 May 2018 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code, 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’s attorney states: a. On 5 July 2011 [13 January 2011], as a minor the applicant enlisted in the U.S. Army as a 91H (Track Vehicle Repairer) with his father’s consent (see exhibits 1 and 2 - DD Form 214 and DD Form 1966/5, dated 30 December 2010). b. While serving at, his father and sole living parent was incarcerated. If he was to be released, the applicant would be the only person available to provide him a place to live. His father states, the applicant’s mother passed away prior to him entering the military. He was incarcerated in on 29 March 2012. His wife left him and his mother passed away while he was in prison. In order to get paroled he had to have a place to live. The applicant left the Army to provide a home for him. His father was released from prison on 12 August 2013. The applicant has been working hard at his job, is very responsible and dependable and deserves a chance to serve his country again (see exhibit 3 - Father’s Statement, unspecified date). c. The applicant informed his leadership that he needed to separate from the Army to return home to provide his father with a place to live. The judge advocate general (JAG) told him the fastest way to get out was to fail a drug test. He was desperate to help his father but not willing to actually use an illegal drug. The applicant was unable to obtain clear guidance on how to handle his circumstances and was left to attempt to find a solution on his own. Ultimately, he chose to lie to his commander, falsely telling him that he had used drugs in an attempt to secure a discharge. He never used drugs and he understands that lying about using drugs was wrong. He is truly embarrassed by his actions to obtain his discharge and desires a chance to fulfil his commitment to serve his country, (see exhibit 4 - Applicant Personal Statement, unspecified date). d. The applicant did not use a controlled substance while on active duty and his urinalysis test was negative (see exhibit 5 - Drug Test Results, dated 19 November 2011). e. Based solely on his statements to his commander, he was discharged on 28 February 2013. The narrative reason for separation was "Misconduct (Drug Abuse)” and he received a general, under honorable conditions discharge with a RE-4 code (see exhibit 6 - Un-redacted DD Form 214). f. In 2016, the applicant petitioned the ADRB for a records correction. After a live hearing in Arlington, VA, the ADRB voted to correct his reason for separation from "Misconduct (Drug Abuse)" to “Misconduct (Serious Offense)." (see exhibit 7 - ADRB Corrected DD Form 214). g. The applicant's discharge was improper because the Army failed him when his chain of command and the legal office did not provide him information regarding his ability to apply for an emergency transfer or hardship separation (see exhibit 4 - Applicant Personal Statement, unspecified date). h. Pursuant to Chapter 6, paragraph 6-3, Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), a Soldier may apply for a hardship discharge when separation from the Army will materially affect the care or support of the family by alleviating undue and genuine hardship and: (1) Conditions have arisen or have been aggravated to an excessive degree since entry on Active Duty or Active Duty Training. (2) Conditions are not of a temporary nature. (3) Every reasonable effort has been made by the Soldier to alleviate the dependency or hardship conditions without success. (4) Separation from active military service of the Soldier is the only readily available means of eliminating or materially alleviating the dependency or hardship conditions. i. It is highly probable that had the applicant been informed of the option of applying for a hardship discharge he would have met the criteria. As the sole responsible adult relative available to assist his father, it appears that the criteria for this discharge would have been satisfied. j. Given the circumstances and his eligibility for a hardship separation, it is clear that the applicant received inaccurate legal guidance and that the errant legal guidance prevented him from becoming aware of his right to apply for a hardship separation and caused him to seek an alternative means of obtaining a discharge. It is reasonable to conclude that but for the failure of an Army JAG to provide him proper and thorough legal advice, he would not have been discharged under adverse circumstances. k. The failure of an Army JAG to provide proper legal guidance and inform a Soldier of their right to apply for a hardship discharge was a clear violation of AR 27-26 (Rules of Professional Conduct for Lawyers), paragraph 6 (Preamble: A Lawyer’s Responsibilities), and Rule 1.1. This error was compounded by the fact that rather than informing the applicant of his right to apply for a hardship discharge the JAG suggested that he could obtain a discharge by engaging in misconduct (see exhibit 4 - Applicant Personal Statement, unspecified date). In this case, the clear legal error of a JAG and the chain of command in not providing proper and reasonable guidance to the applicant, interfered with his right to apply for a hardship separation and this error justifies the relief requested in this application. l. The reason he had to return home to was to provide a home for his father because his father was incarcerated at the time and needed a home to move into in order to be paroled. His father had no other relatives that could provide him a place to stay. The applicant approached his command about his predicament to seek guidance. His command disregarded his issue and told him it would be impossible for him to be discharged to help his father. As a result, he believed there was no other way to help his father other than to be discharged from the Army as soon as possible. Resultantly, he made the decision to lie to his command and state that he had smoked marijuana. This confession triggered a urinalysis, which he of course passed. Although he made the unfortunate decision to lie to his command about his supposed marijuana use, it is important to understand the context of why he made this statement. He was forced into the position of choosing his father or the Army. The applicant attempted to rectify this issue by approaching his command and asking for help, but his requests fell on deaf ears. As a result, he took matters into his own hands and found the quickest means to be separated. He should not continue to be punished because his command failed to offer him the assistance he needed and clearly deserved. m. Furthermore, the applicant has been unjustly stigmatized and unduly prejudiced as a result of his discharge from the Army. His conduct as a Soldier was in keeping with the standards expected of a young Soldier and was honorable up until a single instance of supposed misconduct. He was well on his way to enjoying a fruitful and honorable Army career before the combination of extremely difficult and seemingly impossible circumstances and errant legal advice combined led him to believe he was out of options. n. The U.S Court of Federal Claims, Military Appellate Courts and Federal District Courts have all recognized the punitive nature of negative service characterizations. For example, the Court of Federal Claims has noted that "[s]ince the vast majority of discharges from the armed forces are honorable, the issuance of any other type of discharge stigmatizes the ex-serviceman. It robs him of his good name. It injures his economic and social potential as a member of the general community.'' . U.S., 165 Ct. Cl. 470 (Ct. Cl. 1964). Similarly, Federal District Courts have recognized that, “[t]here can be no doubt that a military discharge on other than honorable grounds is punitive in nature, since it stigmatizes the serviceman's reputation, impedes his ability to gain employment and is in life, if not in law, prima facie evidence against the serviceman's character, patriotism or loyalty." 314 F. Supp. 475,478 (U.S.D.N.Y. 1970). The language of these decisions evinces how a general under honorable conditions discharge harm an individual in the civilian world once they are separated. After reviewing the totality of the circumstances, it becomes clear that the applicant does not deserve to continue to be punished with his inequitable characterization of service, reason for separation, and reentry code. o. One can only imagine the anguish his father feels knowing that his son threw away an opportunity to serve his country in order to come home and take care of him. The applicant’s letter further strengthens the obvious inequity of his discharge from the Army after he was given the worst kind of errant legal advice and not provided proper guidance by his leadership. He has been the victim of both material errors by his command and a material injustice. He now seeks to reclaim his honor and restore his good name that has been indelibly tarnished since his separation from the Army. 3. On 5 July 2011, at the age of 18 years, 1 month and 6 days old, he enlisted in the Regular Army for 3 years and 25 weeks. The applicant's record is void of the complete facts and circumstances concerning the events which led to his discharge from the Army. His record shows: a. On 7 February 2013, the separation authority directed a general under honorable conditions discharge prior to his expiration term of service under the provisions of AR 635-200, Chapter 14, paragraph 14-12c (2), misconduct-abuse of illegal drugs. Per AR 635-200, paragraph 1-35b, he was ineligible for a transfer to the Individual Ready Reserve. b. On 26 February 2013, he was assigned to the U.S. Army Transition Point, Fort Hood, TX for transition processing, effective 28 February 2013. 4. The applicant provided his voided DD Form 214 which shows, on 28 February 2013 he was discharged accordingly. He completed 1 years, 7 months and 26 days of net active service during this period. His DD Form 214 shows in: * block 13 (Decorations, Medals, Badges, Citations and Campaign awarded or authorized: o National Defense Service Medal o Army Service Ribbon * block 24 (Character of Service) - Under Honorable Conditions (General) * block 25 (Separation Authority) - AR 635-200, paragraph 14-12c (2) * block 26 (Separation Code) - "JKK" * block 27 (Reentry (RE) Code) - "4" * block 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) 5. On 2 May 2014, the applicant applied to the ADRB for an upgrade of his general under honorable conditions discharge and to change his RE code. On 12 June 2015, after careful review of her application, military records and all other available evidence, the ADRB determined that the applicant was properly and equitably discharged. Accordingly, his request was denied. 6. On 29 September 2016, the applicant applied to the ADRB for an upgrade of his general under honorable conditions discharge, change to his narrative reason, and RE code. 7. The applicant’s attorney provided, the ADRB decision dated 21 May 2018. After a personal appearance hearing, careful review of his application, military records and all other available evidence, the ADRB determined the applicant’s narrative reason was inequitable and directed changing the separation authority to AR 635-200, paragraph 14-12c, the narrative reason for separation to Misconduct (Serious Offense), the RE- code to RE-3, and the separation code to JKQ. The board determined the characterization of service was proper and equitable and voted not to change it. 8. The applicant’s attorney states the applicant did not use a controlled substance while on active duty as documented in his negative urinalysis test (see exhibit 5 - Drug Test Results, dated 19 November 2011). His only misconduct although wrong, was that he lied to his command and stated that he smoked marijuana to get home in order to provide a home for his father who was being released from prison. He completed 1 years, 7 months and 26 days of his 3 years and 25 weeks’ contractual obligation. 9. The absence of the applicant's separation packet means we are unable to determine or provide the specific circumstance(s) that led to his discharge. However, in view of the fact his service record contains his DD Form 214 that states the reason and authority for separation, the Board presumes the applicant's leadership properly completed his discharge action. This presumption notwithstanding, AR 635-8 (Separation Processing and Documents) and AR 600-8-104 (Army Military Human Resources Records Management) both require supporting documents for an approved separation action to be maintained in the affected Soldier's OMPF. a. AR 635-200 stipulated commanders use of the notification procedure when advising the Soldier of the contemplated separation action; this procedure applied in cases where circumstances did not warrant an under other than honorable conditions character of service. (1) The notification procedure involved giving the Soldier a written notice of the proposed separation, which specified the type of separation, the reason for the commander's action, and the Soldier's rights under the regulation; those rights included: consultation with military counsel, submission of statements in his/her own behalf, copies of documents to be sent to the separation authority, and the ability to waive the aforementioned rights in writing. (2) The Soldier was to indicate on an "Election of Rights" document whether he/she consulted with counsel, was submitting matters in his/her own behalf, and what rights he/she was asserting or waiving. b. Paragraph 5-3 (Secretarial Plenary Authority) states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. c. AR 635-200 also states commanders will insure that adequate counseling and rehabilitative measures have been taken before initiating action to separate a member. Waiving rehabilitation applies when it would not be in the best interest of the Army as it would not produce a quality Soldier. Chapter 14 separates members who demonstrate or display patterns of misconduct. 10. Soldiers on active duty could also be discharged or released from active duty under chapter 6, AR 635-200, based on a genuine dependency; the regulation defined dependency as involving a disabling condition, incurred by a member of the Soldier's immediate family, which resulted in the family member's reliance on the Soldier for principal care or support. a. Separation criteria included the following: * family member's condition had to have arisen since the Soldier entered active duty or active duty for training, and could not be temporary in nature * efforts had to have been made to alleviate the dependency conditions without success * separation of the Soldier was the only available means to alleviate the dependency b. The Soldier was required to submit an application with supporting documentary evidence. 11. In reaching its determination, the Board can consider the applicant’s petition, his service record, and his statements in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found with in the military records, the Board determined relief was 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 frequency and nature of the misconduct, the reason for separation and whether to apply clemency. Based on the preponderance of evidence available for review, the Board determined the evidence presented sufficient to warrant a recommendation for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing him a DD Form 214 for the period ending 28 February 2013 showing in * block 24 (Character of Service) Honorable * block 26 (Separation Authority) Secretarial Authority * block 27 (Reentry Code) RE-1 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes), in effect at the time, prescribes the specific authorities (statutory or other directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. a. It identifies the SPD code of "JKK" as the appropriate code to assign enlisted Soldiers who are discharged under the provisions of AR 635-200, paragraph 14-12c (2), Misconduct (Drug Abuse). The SPD Code/RE Code Cross Reference Table shows a Soldier assigned and SPD code of “JKK" will be assigned a Re code of 4. b. The SPD code of "JFF" is assigned to enlisted Soldiers who are discharged under the provisions of AR 635-200, paragraph 5-3, Secretarial Authority. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD code of “JFF" will be determined by the Headquarters Department of the Army directive authorizing the separation. 3. AR 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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. 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. Paragraph 5-3 (Secretarial Plenary Authority) states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders. d. Chapter 6 (Separation Because of Dependency or Hardship). Soldiers on active duty could be discharged or released from active duty based on a genuine dependency; the regulation defined as the death or disability of a member of the Soldier's immediate family that resulted in the family member having to rely on the Soldier for principal care or support. The family member's condition had to have arisen since the Soldier's entry on active duty or active duty for training, the condition was not temporary, efforts had been made to alleviate the dependency conditions without success, and separation of the Soldier was the only means available to alleviate the dependency. The Soldier was required to submit an application for separation that was supported by documentary evidence. e. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. An under other than honorable conditions discharge 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 regulation. Paragraph 14-12c provides for the separation when there is a pattern of misconduct involving acts of drug abuse. f. Paragraph 1-16 waives the rehabilitation transfer because it would not be in the best interest of the Army as it would not produce a quality Soldier. 4. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (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. 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, 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. 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) AR20210010606 1 1