IN THE CASE OF: 
BOARD DATE:  19 August 2022 
DOCKET NUMBER: AR20220000997 


APPLICANT REQUESTS:  His Separation Program Designator (SPD) code be changed to a more favorable code. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•DD Form 293 (Application for the Review of Discharge)

•Letter from the American Legion, Department of Indiana Service Department,dated 14 October 2021



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, in effect, he desires to have his SPD code changed to a code that will enable him to receive medical treatment from the Department of Veterans Affairs (DVA) for his service-connected condition of Post-Traumatic Stress Disorder(PTSD).3.The applicant enlisted in the Army National Guard of the United States (ARNGUS) and as a Reserve of the Army on 30 July 2003 for a period of 8 years; with duty in the  Army National Guard (ARNG) for a period of 6 years.4.A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty on 26 August 2003. Upon completion of initial active duty training he was released from active duty on 18 December 2003 and transferred to the control of the ARNG. His service was characterized as honorable.5.A DA Form 4187 (Personnel Action) shows he was promoted from the rank/grade of Private (PV1)/E-1 to Private (PV2)/E-2, effective 22 January 2004.

6.The applicant was ordered to active duty as a member of his Reserve Componentunit in support of Operation Enduring Freedom (OEF) for a period not to exceed 365days with a reporting date of 23 January 2004, with a mobilization date of 26 January2004.

7.DA Forms 4187 show he was promoted from PV2 to Private First Class (PFC)/E-3effective 22 March 2004 and from PFC to Specialist (SPC)/E-4 effective 22 July 2004.

8.The applicant's record is void of documentation showing the facts and circumstancesregarding his administrative separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, Paragraph 14-12c(Misconduct – Serious Offense). However:

a.A DD Form 214 shows he was involuntarily discharged from active duty on14 August 2004 in the rank/grade of PV1/E-1 and reverted to the control of the INARNG. His DD Form 214 shows in: 

(1)block 12 (Record of Service) – He completed 6 months, and 22 days of netactive service this period. 

(2)block 13 (Decorations, Medals, Badges, Citations and Campaign awarded orauthorized) - He was awarded or authorized the National Defense Service Medal, Armed Forces Reserve Medal with Mobilization Device, Army Service Ribbon, and the Global War on Terrorism Service Medal. 

(3)block 18 (Remarks) - He had not completed his first full term of service. Hewas ordered to active duty in support of OEF. He was separated from service on temporary records and his affidavit. A DD Form 215 (Correction of DD Form 214) would be issued to provide missing information or to correct any information. 

(4)block 24 (Character of Service) - His characterization of service was General,Under Honorable Conditions. 

(5)block 25 (Separation Authority) - The authority for his separation was ArmyRegulation 635-200, Chapter 14, paragraph 14-12c. 

(6)block 26 (Separation Code) - His SPD code was "JKQ."

(7)block 27 (Reentry Code) - His reentry eligibility (RE) Code as "3."

(8)block 28 (Narrative Reason for Separation) - His reason for separation as"Commission of a Serious Offense." 

b. Orders 294-014, issued by the Military Department of , ,  on 20 October 2004, and his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) show he was discharged from the ARNG effective 14 August 2004. His service was characterized as general, under honorable conditions with RE-3. Under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), Paragraph 8-26e (2), by reason of acts or patterns of misconduct. 







9.The applicant provides a letter rendered by a representative from the American Legion, , on 14 October 2021, requesting appropriate action on the applicant's application.10.Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier's overall record.11.Clemency guidance to the Boards for Correction of Military/Navy Records(BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome.a.The available record shows the applicant was reduced and discharged havingcompleted 1 year and 5 days of net service toward his 6-year commitment in the INARNG. The record is void of and he has not provided evidence that his misconduct was a direct result of a medical condition he suffered from during his service. 

b.Published guidance to the BCM/NRs clearly indicates that the guidance is notintended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition.  

12.MEDICAL REVIEW:

The applicant is applying to the Army Board for Correction of Military Records (ABCMR) for his Separation Program Designator (SPD) code be changed to a more favorable code. 

a.The applicant states, in effect, he desires to have his SPD code changed to acode that will enable him to receive medical treatment from the Department of Veterans Affairs (DVA) for his service-connected condition of Post-Traumatic Stress Disorder (PTSD). 

b.The ABCMR Behavioral Health (BH) Advisor was asked to review this case.Documentation reviewed includes: 

•DD Form 293 (Application for the Review of Discharge)

•Letter from the American Legion, Department of Indiana Service Department,dated 14 October 2021


c.VA electronic medical record, Joint Legacy Viewer (JLV) was reviewed.

d.A review of the Armed Forces Health Longitudinal Technology Application(AHLTA) & Health Artifacts Image Management Solutions (HAIMS) were reviewed. 

e.AHLTA does not contain any data or diagnosis.  JLV contains post-service BHdiagnoses of Opioid Dependence and Alcohol Dependence. The applicant is not service connected. 

f.While the applicant contends he needs an upgrade to receive medical treatment,VA contain 68 encounters for medical, psychiatric, and substance abuse treatment, with the most recent encounter dated 23 MAY 2022. 

g.The applicant did not supply any medical records or documentation to support hisclaim of having PTSD. 

h.After reviewing the available information and in accordance with the 3 Sep 2014Hagel Liberal Consideration Memorandum and the 25 Aug 2017 Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisor that the applicant does not have any mitigating diagnosis. Additionally, without knowing the Basis for Separation medical mitigation cannot be determined.  

i.Kurta Questions

(1)Does any evidence state that the applicant had a condition or experience thatmay excuse or mitigate a discharge?


(a)Yes. Applicant contends he has PTSD.



(2)Did the condition exist or experience occur during military service?



(a)Yes. Applicant contends he has PTSD.



(3)Does the condition or experience actually excuse or mitigate the discharge?



(a)No. After reviewing the available information and in accordance with the 3Sep 2014 Hagel Liberal Consideration Memorandum and the 25 Aug 2017Clarifying Guidance, it is the opinion of the Agency Behavioral Health advisorthat the applicant does not have any mitigating diagnosis. Additionally,without knowing the Basis for Separation medical mitigation cannot bedetermined.



BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, a medical review, regulatory guidance, and DoD guidance for liberal consideration were carefully considered. Based upon a preponderance of the evidence, the Board determined there was no error or injustice with the separation code provided at the time of his discharge and amend the code is not warranted. 

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. 



Microsoft Office Signature Line...

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 militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Title 10, USC, Section 1556 provides the Secretary of the Army shall ensure that anapplicant seeking corrective action by ARBA is provided a copy of all correspondenceand communications, including summaries of verbal communications, with any agenciesor persons external to agency or board, or a member of the staff of the agency orBoard, that directly pertains to or has material effect on the applicant's case, except asauthorized by statute.

3.Army Regulation 15-185 prescribes the policies and procedures for correction ofmilitary records by the Secretary of the Army, acting through the ABCMR. Theregulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity. The applicant has the burden of proving anerror or injustice has occurred by a preponderance of the evidence. It is not aninvestigative body. The ABCMR considers individual applications that are properlybrought before it. In appropriate cases, it directs or recommends correction of militaryrecords to remove an error or injustice.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  
 
 a.  Paragraph 3-7a provides that 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.  Paragraph 3-7b states 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 
 
5.  Army Regulation 635-5-1 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. It states that the separation code "JKQ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct. Additionally, the SPD/RE Code Cross Reference Table established that RE Code "3" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 
 
6.  NGR 600-200 (Enlisted Personnel Management), in effect at the time, prescribed the criteria, policies, processes, procedures and responsibilities to classify; assign; utilize; transfer within and between states; provide Special Duty Assignment Pay; and separate enlisted Soldiers. Paragraph 8-26e(2)(c), NGR 600-200, specifically provided for separation of second time drug offenders due to a pattern of misconduct-abuse of illegal drugs. 
 
7.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be representing a civilian healthcare provider in order to determine if it would be 
 
8.  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; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 
 
9.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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. 
 
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