IN THE CASE OF: 

BOARD DATE:  9 March 2022

DOCKET NUMBER:  AR20210013565

APPLICANT REQUESTS: 

*	change discharge date from 3 March 1995 to 22 September 1995
*	change narrative reason for discharge
*	change reentry (RE) code
*	change separation code
*	personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
 
*	DD Form 149 (Application for Correction of Military Record)
*	Continuation of Application
*	DD Form 214 (Certificate of Release or Discharge from Active Duty)
*	Character Reference
*	Resume

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10 (Armed 
Forces), United States Code (USC), section 1552 (b) (Correction of Military Records:  
Claims Incident Thereto).  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, in effect:

	a. Although he did receive corrective actions in the form nonjudicial punishment 
(NJP), no incident that he was involved in was severe enough to cause him to be 
forcefully separated from the military service.

	b. At the time, he had found out he had a child he was unaware of and the mother of 
the child had given up the child for adoption through a Catholic charity organization. He 
started making the almost four-hour trip from Lawton to Oklahoma City where his 
attorney was and where the court hearing would eventually be held on a regular basis.
	c. He arrived back from Lawton late on occasion and this caused him to be late for 
formation, which he received corrective action. He informed his company commander of 
the situation and rather than advise him that he had the right to a military attorney, 
which he was not ware of until recently as well as the fact that under the Soldiers and 
Sailors [Relief] Act he had other legal rights that would protect him from legal 
proceedings moving forward, while he was on active duty, which included that option of 
him taking time off in order to go to court.

	d. His commander advised him to take an early out in order to handle his personal 
business. As a result, he was given the option of getting out early. This cost him all of 
his GI Bill money as well as any military benefits he had earned and would have been 
eligible for after a regular honorable separation. 

	e. He was unjustly forced to take an early out by his chain of command, when he 
actually had several options available to him all of which would have let him stay in the 
military for the remaining six months of his enlistment. He was only given one option. He 
basically had no other choice and was told if he continued to be late for formation, the 
result would be jail time; therefore, this was his best option in order to take care of the 
situation. 

3. In support of his application, the applicant provides the following documents, not 
contained in his service record, for the Board's consideration:

	a. A letter from a retired major (MAJ), which states, in effect:

		(1) The attestation to the applicant's character can be summarized in the areas of 
Commitment, Trust, and Dependability, choosing to serve, and continuing to serve.

		(2) Commitment, Trust, and Dependability: Clear examples in these areas can 
consistently be observed throughout his upbringing, interaction with professional 
colleagues, and family members. The applicant is a walking embodiment of 
commitment, which can easily be traced through his words, acts, and deeds. Army 
Regulation 6-22 (Army Leadership - Leadership Competency Model) defined building 
trust as an important competency to establish conditions of effective influence and for 
creating a positive environment. By daily habit, he consistently seeks to be a loyal, 
positive influence on those around him, thus creating an environment of trust. Lastly, he 
can be depended upon to complete whatever he pledges to do, provide what he has 
pledged to provide or achieve whatever he sets his mind to achieve.

		(3) Choosing to Serve:  At the time of relative national peace and financial 
prosperity, and with many educational and financial options readily available, the 
applicant chose to serve his country, to volunteer for service in America's Army, wear 
the uniform, and do his part in protecting the American homeland. This act of selfless 
volunteerism placed him in the small, yet honorable demographic, of being in the 0.4 
percent of the American population that serve in the US Armed Forces. A stalwart 
example of dedication to the country.

		(4) Continuing to Serve: The applicant received advanced technical training in 
signal communications specializing in automated telecommunication computer systems, 
local area networks, routers, and electronic equipment, a career field that is recognized 
as being quite financially lucrative in the civilian sector. Instead, the applicant again 
chose to continue to serve, this time his community, and committed himself to becoming 
an educator. Much less financially lucrative, yet much more personally rewarding, he 
continues to be a positive role model as a teacher for elementary aged school children.

		(5) It is without hesitation and with real enthusiasm that the MAJ supports, 
recommends, and attests to the impeccable charter of former US Army service member, 
the applicant. 

	b. His resume, which shows his work experience, certifications, and education.

4. On 26 May 2021, the applicant received a letter from the Army Review Boards 
Agency (ARBA), which states they were not able to complete his application because 
he records were unavailable. In response to the letter from ARBA, he responded, in 
effect:

	a. He should have been protected under the Soldiers and Sailors Relief and directed 
to counsel to help with his custody case. The custody case was in Oklahoma City and 
he simply was not able to get back and forth from court without being late to assembly 
and he was told he could not take any more time off because of the trouble he had 
recently been in and due to the fact that he only had a short time of service left.

	b. He did not know, at the time, that he should have been allowed to take his time 
off. He was wrongfully forced out of the service due to his court case. He was given the 
choice between going to the custody hearing for his daughter or staying on post and not 
being late anymore. He chose going to court. This was a scenario or choice that he 
should not have been subjected to.

	c. He needed to add this statement because in his haste to have his discharge 
upgraded, he was not sure he properly vocalized the situation and the choice he was 
given.

	d. A lawyer later told him if he was a service member, the could could not have the 
custody hearing without him being there because of the Solider and Sailors Relief Act. 
At the time, he was extremely young and the captain pressed him into an immediate 
decision, while also telling him he could not take leave.
	e. Every source he talked to says he should have had access to his leave and it 
should have been a simple matter. Having to choose between his daughter and the 
military, he chose his family; however, he was in the military in order to make a better 
life for himself as well as serve his country and this was a traumatic and heartbreaking 
choice he was given, which hurt even more when he found out he lost his daughter and 
his service benefits and it was done in a way that should have been avoided if he had 
the proper support, at the time, from his unit.

	f. He explained his situation to his chain of commend and rather than support him 
and give him time off, which he had available, he was told because he only had a few 
months of enlistment time left that was not an option for him. At the time, he had 
planned to reenlist.

	g. His brother was a career military man and retired in the rank of colonel (COL). 
The applicant's plan was to follow in his footsteps. The applicant went to advanced 
individual training in Georgia where his unit was stated and would have chosen to serve 
there in Georgia but once he found out about the custody case, he chose the closest 
location to Oklahoma City. He never would have chosen to get out of the service had he 
known he really had other options and could have kept serving and keep his benefits.

5. On 28 June 1993, at the age of 18, the applicant joined the US Army Reserve 
(USAR) delayed entry program (DEP) for a period of 8 years.  On 22 September 1993, 
he was discharged from the USAR DEP and entered active duty for a period of 2 years 
and 29 weeks7. On 1 October 1993, the applicant entered basic training and on 29 
November 1993, he entered AIT for the military occupational specialty (MOS) of 31U 
(Signal Support Systems Specialist). His first duty station was Fort Sill, Oklahoma. 

6. The applicant received General Counseling Forms on:

	a. 20 June 1994, he had gone to sick call and was given an appointment. He had 
two hours and fifteen minutes to clean his area, get dressed, and report for duty, which 
did not happen. He failed to report to the morning formation at 0830. The applicant 
concurred with the counseling and signed the form.

	b. 31 August 1994, monthly counseling he did not perform to the communication 
platoon's standards. He was late for numerous formations. The applicant concurred with 
the counseling and signed the form.

	c. 27 October 1994, for having a female in the barracks after visiting hours. The 
applicant concurred with the statement but stated he had no knowledge that a visitor 
was in his room or at the barracks until he saw the female at his car. She was not in his 
room prior to morning formation and he did not ask her to go over. 

	d. 6 January 1995, for failing to report to physical training formation and work 
formation and disobeying a lawful order. The applicant concurred with the statement 
and signed the form.

	e. 18 January 1995, for mission work call formation. The applicant non-concurred 
with the statement and stated to the best of his knowledge formation was at 0845 and 
no one told him otherwise. 

	f. 23 January 1995, for missing formation for work call. The applicant did not sign the 
counseling form. 

	g. 24 January 1995, for failing to report to work call. The applicant concurred with the 
counseling and signed the form.

	h. 3 February 1995, monthly counseling he had received three negative counseling 
forms for missing formation. The applicant concurred with the counseling and signed the 
form. 	 

	i. 6 February 1995, for traveling with an open container, driving with a suspended 
driver's license, driving under the influence refusal, and drinking underage. The 
applicant non-concurred with the counseling and signed the form. 

7. The applicant accepted NJP on:

	a. 20 August 1994 for failing to go to his appointed place of duty. His punishment 
included reduction to the grade of Private/E1 (PVT); forfeiture of $194, suspended; extra 
day and restriction for 14 days. The applicant did not appeal his punishment.

	b. 30 January 1995 for failing to go to he appointed place of duty. His punishment 
included forfeiture of $199, suspended; and extra duty and restriction for 14 days. The 
applicant did not appeal his punishment. 

8. On 26 October 1994, the applicant received a breathalyzer, which shows his alcohol 
concentration was .01. 

9. On 2 February 1995, the applicant underwent a Report of Medical Examination, 
which shows the applicant was qualified for separation. 

10. On 5 February 1995, a Military Police Report was completed showing the applicant 
was charged with transporting an open container, possession of non-intoxicating 
beverage by a person under the age of 21, operating a vehicle while his driver's license 
was suspended, and failing to dim his headlights. 
11. On 8 February 1995, the applicant underwent a Report of Mental Status Evaluation, 
which shows he met retention standards and was psychiatrically cleared for any 
administrative action deemed appropriate by command.

12. On 10 February 1995, the applicant was notified of suspension/revocation of his 
driving privileges.

13. On 13 February 1995, a memorandum subject: Suspension of Favorable Personnel 
Actions was completed and shows, a complaint was being filed in US Magistrate Court 
against the applicant for driving under the influence on 5 February 1995.

14. On 15 February 1995, the applicant's commander informed him of his intent to 
separate the applicant under chapter 14 (Separation for Misconduct), Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel) for committing several acts of 
misconduct such as failure to report to his appointed place of duty at the appropriate 
time, having a female in the barracks after visiting hours, driving on a suspended 
driver's license, and disobeying a lawful order. The commander was recommending the 
applicant receive an under honorable conditions (general) discharge; however, the 
separation authority was not bound by his recommendation as to the characterization of 
service. The applicant acknowledged receipt of the notification.

15. On 27 February 1995, after consulting with counsel, the applicant acknowledged 
counsel had advised him of the basis for the separation action, the applicant's rights in 
the separation process, and the effect of waiving those rights.  The applicant elected not 
to submit a statement in his own behalf.

16. The applicant's chain of command recommended approval of the separation with an 
under honorable conditions (general) discharge.

17. The approval authority's memorandum was not available for the Board's condition; 
however, his DD Form 214 shows he was separated on 3 March 1995 with an under 
honorable conditions (general) discharge. He completed 1 year, 5 months, and 12 days 
of his 2-year and 29-week enlistment contract. He was awarded or authorized the 
National Defense Service Medal, Army Service Ribbon, and Expert Marksmanship 
Badge (Rifle M16).  

18. The applicant is requesting a change in his discharge date, the narrative reason or 
separation, his RE code, and separation code. He states he was going to court trying to 
get custody of his daughter and was late for formation on several occasions because of 
the hearings. He states he should have been informed of the Soldier and Sailor Relief 
Act, which would have allowed him to either have time off for court or would have put 
the case on hold until he was able to attend court. 

	a. Neither the applicant nor his records provide documentation regarding having a 
daughter or showing he was going to court. 

	b. The Soldier and Sailor Relief Act give Soldier's the ability to stay civil court 
proceedings, protections in connection with default judgments, protections in connect 
with residential lease termination, and protections in connection with evictions, 
mortgage foreclosures, and installment contract such as car loans. 

	c. Army Regulation 635-5 (Separation Documents) provides detailed instructions for 
completing separation documents, including the DD Form 214.  It provides that the 
DD Form 214 is a summary of a Soldier's most recent period of continuous active 
service.  It provides a brief, clear-cut record of active service at the time of release from 
active duty, retirement, or discharge. The applicant's service records show he was 
discharged on 3 March 1995, which is appropriately shown on his DD Form 214. 

	d. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) is the 
source document for entries in item 28 of the DD Form 214.  It states, Soldiers 
separated under the provisions of Army Regulation 635-200, Chapter 14 (Misconduct) 
were required to be assigned the SPD "JKA," and the associated narrative reason for 
separation was "Misconduct." 

	e. Army Regulation 635-5 (SPD/RE Code Cross Reference Table) shows the SPD of 
JKA had the corresponding RE Code of RE-3.

	f.  Army Regulation 15-185 (ABCMR) states an applicant is not entitled to a hearing 
before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the 
Director of the ABCMR. 

19.  In reaching its determination, the Board can consider the applicant's petition, his 
service record, and his statements in light of the published DOD guidance on equity, 
injustice, or clemency.


BOARD DISCUSSION:

1.  After reviewing the application and all supporting documents, the Board found that 
relief was not warranted. The Board carefully considered the applicant's record of 
service, documents submitted in support of the petition and executed a comprehensive 
and standard review based on law, policy and regulation. Upon review of the applicant’s 
petition and available military records, the Board determined there is insufficient 
evidence of in-service mitigating factors to overcome the misconduct. The Board found 
the applicant service record exhibits numerous instances of misconduct during his 
enlistment period.  Evidence of record shows, at the time of separation, documentation 
supports the reentry code, separation code and narrative reason for separation properly 
identified on the DD Form 214. Based on a preponderance of evidence, the Board 
determined that the separation code, narrative reason and reentry code the applicant 
received upon separation was not in error or unjust. Therefore, relief was denied.

2.  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

:	:	:	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):  N/A


REFERENCES:

1. Title 10, USC, 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. The Soldier and Sailor Relief Act give Soldier's the ability to stay civil court 
proceedings, protections in connection with default judgments, protections in connect 
with residential lease termination, and protections in connection with evictions, 
mortgage foreclosures, and installment contract such as car loans. 

3. Army Regulation 635-5 (Separation Documents) provides detailed instructions for 
completing separation documents, including the DD Form 214.  It provides that the DD 
Form 214 is a summary of a Soldier's most recent period of continuous active service.  
It provides a brief, clear-cut record of active service at the time of release from active 
duty, retirement, or discharge. 

4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) is the 
source document for entries in item 28 of the DD Form 214.  It states, Soldiers 
separated under the provisions of Army Regulation 635-200, Chapter 14 (Misconduct) 
were required to be assigned the SPD "JKA," and the associated narrative reason for 
separation was "Misconduct." 

5. Army Regulation 635-5 (SPD/RE Code Cross Reference Table) shows the SPD of 
JKA had the corresponding RE Code of RE-3.

6. 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 ABCMR may, in its discretion, hold a hearing or request additional evidence or 
opinions.  Additionally, it states in paragraph 2-11 that 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.
7.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness 
issued guidance to Military Discharge Review Boards and 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)	 AR20210013565


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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