IN THE CASE OF: BOARD DATE: 21 July 2023 DOCKET NUMBER: AR20220008295 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to change his narrative reason for separation to Secretarial Authority, and the corresponding Separation Program Designator (SPD) Code be changed. Additionally, he requests: * removal of the diagnosis "adjustment disorder" from his military service records * and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) with self-authored statement * Medical Records, Samaritan Medical Center, dated 20 May 2020, with accompanying email statement * Installation clearing documents, dated 12 January 2021 to 9 April 2021, with accompanying email statement * Army Discharge Review Board (ADRB) Case Report and Directive, Docket Number AR20220000788, 6 June 2022 * Three statements of support, dated 29 April 2022 to 11 November 2022 * Medical Records, Franklin Health Internal Medicine, dated 21 October 2022 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 states, in effect: a. He is making these requests to allow him easier entry back into the military. He made a mistake during his time in service. He admits fault and responsibility for his actions. He is fully determined to serve our nation once more. Despite the upgrade to his RE code, his waiver to reenlist was denied due to his narrative reason (desertion) and separation code "JKF. " b. His rationale for requesting that the diagnosis “adjustment disorder” be removed from his military records is based upon a brief issue which occurred when the Covid 19 measures were put in place. Once he got used to these measures, he quickly moved on with his military service as normal. c. In November of 2020, he made the grave mistake of leaving COVID quarantine. He was in quarantine for a violation of the Covid 19 travel radius imposed by his company. This was his third time in isolation for a continuous 2 week duration. He did not think through the ramifications of his actions. He desired not to be completely isolated in the tiny quarantine barracks. He quickly realized his mistake, but he was afraid of getting arrested. He contacted his chaplain who encouraged him to return. He requested to stay in the Army and had a good attitude during the discharge process. He left on good terms. If he is given a second chance, he will be the best version of himself he can be. 3. The applicant enlisted in the Regular Army on 23 July 2019 for a 3-year period. 4. The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing. However, his DD Form 214 shows he was discharged on 9 April 2021, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c (1). His service was characterized as under honorable conditions (general). He was credited with 1 year and 8 months of net active service this period, with lost time from 20 November 2020 to 6 December 2020. His DD Form 214 also contains the following entries: * item 26 (Separation Code) - JKF * item 27 (Reentry Code) - 4 * item 28 (Narrative Reason) - Misconduct (Desertion) 5. The applicant applied to the ADRB for an upgrade to his discharge and reentry eligibility (RE) code. The Board reviewed the applicant's request on 6 June 2022. After careful consideration, the Board determined the RE code was inequitable based upon the applicant’s statement, demonstrated desire to reenlist, and the matters surrounding his absence without leave (AWOL)/leaving COVID quarantine. The Board voted to grant relief in the form of an upgrade of reentry code to RE-3. The Board further determined his characterization of service, narrative reason, and SPD code were proper and equitable and voted not to change them. 6. The applicant was issued a new DD Form 214, for the period ending 9 April 2021, on 20 July 2022. The reentry code was upgraded to RE-3. There were no additional changes. 7. The applicant provides: a. Military medical records from Samaritan Medical Center, Watertown, NY, which show the applicant was admitted to the hospital on 20 May 2020, for suicidal ideation. He self-reported that he only made suicidal statements to his chain of command to get out of the Army and had no intention of hurting himself. He was diagnosed with adjustment disorder with difficulty coping with his new job in the military. In an attached statement, emailed to the Army Review Boards Agency on 28 October 2022, the applicant states at the time of his admission he wished to be separated from the Army due to his relationship with his leadership. He would have preferred to change units as opposed to being fully chaptered out of the Army. However, his requests for a change in leadership fell upon "deaf ears." b. Four pages of installation clearing documents, dated 12 January 2021 through 9 April 2021, that indicate the applicant’s status as AWOL not desertion. c. In three statements of support, dated 29 April 2022 to 11 November 2022, the authors attest to the applicant’s character. They state, in effect, he is a well-rounded man who is working hard to get all the paperwork together to come back into the Army. He showed no issues adapting to the military lifestyle. Like everyone else, he had trouble adjusting to the inconsistent demands of their chain of command. d. Civilian medical records from Franklin Health Internal Medicine, dated 21 October 2022, show the applicant underwent a behavioral health evaluation. The evaluating Nurse Practitioner did not feel he had depression or dysthymia, no suicidal thoughts or ideation, and no adjustment disorder. 8. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c (1), the narrative reason for separation is misconduct (desertion) and JKF is the corresponding SPD code. 9. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The applicant's request for a personal appearance 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 before the Board is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that partial relief was warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance. One possible outcome was to deny all relief. However, the majority of Board members found the evidence presented sufficient to warrant a recommendation for partial relief that was not otherwise requested. In reviewing the applicant’s DD214, the Board noted that the narrative reason for the applicant’s separation reflects that he was separated due to misconduct for desertion. Two Board members found insufficient evidence that the applicant was absent without leave for any period of time that would resulted in the narrative reason for separation to reflect desertion and agreed that a correction to his record is warranted. One Board member found the evidence insufficient to weigh in favor of relief. Based on the documentation available for review, the Board determined the evidence presented sufficient to warrant a recommendation for partial relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :x :x :x GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : :ATM DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending his DD214 by removing “DESERTION” from block 28 (Narrative Reason for Separation). 2. The Board further determined the evidence presented is insufficient to warrant a ? portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any other relief not stated above. 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, U.S. 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. 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. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR is not an investigative body and decides cases based on the evidence presented in the military records provided and the independent evidence submitted with the application. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation) paragraph 3-4(f) (Amendment to Medical Records) states that under Health Insurance Portability and Accountability Act (HIPPA), individuals have the right to request an amendment or correction to their Private Health Information (PHI). Military Treatment Facilities (MTF) or Dental Treatment Facilities (DTF) will have procedures in place to address this issue. MTF may deny any individual’s request for amendment if they determine the following: a. The PHI was not created by the covered entity, unless the individual provides a reasonable basis to believe that the originator of PHI is no longer available to act on the requested amendment. b. The PHI is accurate and complete. c. If the MTF or DFT denies the requested amendment, in whole or in part, they will provide the individual with a timely, written denial, written in plain language that will explain the basis for denial. 4. Army Regulation 340-21 (The Army Privacy Program) paragraph 2-10 (Amendment of Records) states individuals may request the amendment of their records, in writing, when such records are believed to be inaccurate as a matter of fact rather than judgement, irrelevant, untimely, or incomplete. Consideration of a request for amendment would be appropriate if it can be shown that circumstances leading up to the event recorded on the document were challenged through administrative procedures and found to be inaccurately described. 5. Army Regulation 630-10 (Absence without Leave, Desertion, and Administration of Personnel Involved in Civilian Court Hearings) establishes policies and procedures for reporting absences, special categories absentees, personnel dropped from the rolls and the surrender of military personnel to civilian law enforcement authorities. The glossary of this regulation defines absent without leave (AWOL) and deserter as follows: a. AWOL is an offense in violation of Article 86, of the Uniform Code of Military Justice referring to a Soldier who without authority: * fails to go to his or her appointed place of duty at the time prescribed * goes from their place of duty without proper authority * is absent or remains absent from their unit, organization, or required place of duty * fails to report to a transportation terminal as ordered * fails to report to his or her proper duty station as ordered b. A deserter is a Soldier dropped from the rolls of his or her unit when: * absent without authority for 30 consecutive days * the unit commander believes the Soldier voluntarily sought political asylum or is living in a foreign country apart from official duties or authorized leave * the Soldier has joined the Armed Forces of a foreign country * there is reasonable belief that the Soldier has left his or her duty station with the intent to avoid hazardous duty or important service, or intends to remain permanently absent * the Soldier fails to return to a unit from which he or she is AWOL after return to military control at another location or departs prior to completion of administrative, judicial, or nonjudicial action for a previous absence * he or she escapes from confinement. * identified as a special category absentee * a commissioned officer tenders his or her resignation and before notice of its acceptance, departs their post or proper duties without leave and with the intent to remain away therefrom permanently * a member of the Armed Forces of the U.S. goes from or remains absent from his or her unit, organization, or place of duty with intent to remain away permanently 6. 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. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense (military or civil). Paragraph 14-12c (1) states an absentee returning from a status of AWOL or desertion may be separated under this chapter for commission of a serious offense. 7. Army Regulation 635-5-1 (SPD) 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 "JKF" is the appropriate SPD to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c (1), by reason of misconduct (desertion). 8. 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/NR) 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, 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) AR20220008295 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1