IN THE CASE OF: BOARD DATE: 24 May 2023 DOCKET NUMBER: AR20220011058 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 January 1998, to show a different narrative reason for separation, presumably more favorable, and a change to the corresponding Separation Program Designator (SPD) Code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * statement of support, dated 18 August 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. At the time of his discharge, he had unaddressed trauma. He was constantly called the "N-word" by fellow Soldiers. He resorted to cannabis use to escape his reality. He did positive things for the Army. He wishes he would have sought therapy. b. On his DD Form 293, he notes sexual assault/harassment as a contributing and mitigating factor in the circumstances that resulted in his separation. 3. After an honorable period of service in the Maryland Army National Guard, the applicant enlisted in the Regular Army, on 31 May 1994, for a 4-year period. The highest rank he attained was specialist/E-4. 4. The applicant's immediate commander was informed, on 25 September 1997, that a urine sample provided by the applicant, during a urinalysis on 9 September 1997, had tested positive for tetrahydrocannabinol (THC). 5. The applicant accepted field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 21 November 1997, for wrongfully using marijuana between on or about 8 August 1997 to on or about 9 September 1997. His punishment consisted of reduction to private/E-2, forfeiture of $250.00 pay per month for two months, and extra duty for 30 days. 6. The applicant's immediate commander notified the applicant, on 10 December 1997, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12c, by reason of misconduct (Abuse of Illegal Drugs). As the specific reason, the commander cited the applicant's Article 15 for the use of marijuana. The applicant acknowledged receipt of this notification on 22 December 1997. 7. On 23 December 1997, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights. He elected not to submit a statement in his own behalf. 8. The applicant underwent a mental status evaluation on 23 December 1997. He was psychiatrically cleared for any administrative action deemed appropriate by his commander. 9. The applicant's immediate commander formally recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct - abuse of illegal drugs. The intermediate commander reviewed and concurred with the recommendation, further recommending the issuance of a DD Form 257A (General Discharge Certificate). 10. The separation authority approved the recommended action on 12 January 1998 and directed the issuance of a General Discharge Certificate. 11. His DD Form 214 shows he was discharged on 23 January 1998, with his service characterized as under honorable conditions (general). He was credited with 3 years, 7 months, and 22 days of net active service. His DD Form 214 also contains the following entries: * item 25 (Separation Authority) - Army Regulation 635-200, paragraph 14-12c (2) * item 26 (Separation Code) - JKK * item 27 (Reentry Code) - 3 * item 28 (Narrative Reason) - Misconduct 12. The applicant provides a statement of support from his wife, dated 18 August 2022, wherein she states, in effect: a. She served with the applicant in Mannheim, Germany, and was his girlfriend from December 1994 to May 1996. Although they broke up when she was stationed elsewhere, they kept in touch. She was aware that he was constantly harassed in his unit. He was repeatedly referred to as a "N-word." It made him angry because he felt there was not anything he could do about it. His leadership was aware and did not stop the behavior. He was forced to deal with it and started to act out. The implications of how this language affects a black person had catastrophic effects. b. She tried to console him, but there was nothing she could do. She watched him go from a "gung-ho" Soldier down a slippery path of alcohol and cannabis use. He stopped caring. Upon his discharge, he started his road to recovery. With work and love, they ended up happily married. He is not a bad person. He had a lot of anger from unaddressed things that happened when he was discharged. He is still in touch with his Army family. 13. The ABCMR requested a report of investigation from the U.S. Army Criminal Investigation Division (USACID), on 11 January 2023, in reference to the applicant's contention of sexual assault/harassment. The search conducted by USACID revealed no records pertaining to the applicant. 14. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct, "JKK" is the appropriate separation code. 15. The Board should consider the applicant's overall record in accordance with the published equity, injustice, or clemency determination guidance. 16. MEDICAL REVIEW: a. The applicant requests, in effect, correction of his DD Form 214, for the period ending 23 January 1998, to show a different narrative reason for separation, presumably more favorable, and a change to the corresponding Separation Program Designator (SPD) Code. He contends his misconduct was related to harassment. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 31 May 1994; 2) He accepted field grade nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on 21 November 1997, for wrongfully using marijuana between on or about 8 August 1997 to on or about 9 September 1997; 3) The applicant's immediate commander notified the applicant, on 10 December 1997, of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, Chapter 14-12c, by reason of misconduct; 4) On 23 December 1997, the applicant consulted with counsel and was advised of the basis for the contemplated actions to separate him and its effects; of the rights available to him; and the effect of any action taken by him to waive his rights; 5) The applicant was discharged on 23 January 1998 under provisions of AR 635-200, Chapter 14-12c, misconduct. c. The ROP, casefiles, and VA electronic medical record, JLV, were reviewed. The military electronic medical record, AHLTA, was not reviewed as it was not in use during the applicant’s time in service. Included in the applicant’s casefiles was a Mental Health Report, dated 23 December 1997, that showed the examiner found the applicant psychiatrically cleared for any administrative action. No other military BH-related records were provided for review. A review of JLV was void of any BH-related history for the applicant and he does not have a service-connected disability. No hardcopy civilian BH records were provided for review. d. The applicant contends his misconduct was related to harassment characterized by being called the “N-word”, which resulted in him using cannabis to escape reality. Records are void of any evidence to support the applicant’s assertion of harassment and he provided no documentation supporting his assertion. Also, while being the target of derogatory language can result in increased stress, it does not impair one’s ability to differentiate between right and wrong and adhere to the right. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is no evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. However, he contends his misconduct was related to harassment, and per Liberal Consideration Policy, his contention is sufficient to warrant the Board’s consideration. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends his misconduct was related to harassment. 2. Did the condition exist or experience occur during military service? Yes. 3. Does the condition or experience actually excuse or mitigate the discharge? No. The applicant contends his misconduct was related to continued harassment characterized by being call the “N-word”, which resulted in him using cannabis to escape reality. Records are void of evidence to support the applicant’s assertion of harassment and he provided no documentation supporting his assertion. Also, while being the target of derogatory language can result in increased stress, it does not impair one’s ability to differentiate between right and wrong and adhere to the right. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, 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, available military records and medical review, the Board concurred with the advising official finding no evidence in the records that the applicant had a condition or experience during his time in service that mitigated his misconduct. The Board noted the applicant’s record was void of any BH- related history for the applicant and he does not have a service-connected disability. Evidence of record shows, at the time of separation, documentation supports the narrative reason for separation properly identified on the DD Form 214. As such, the Board determined under liberal consideration changes to the applicant’s narrative reason are not warranted. Furthermore, the Board determined there was insufficient evidence of an error or injustice which would warrant a change in the separation program designator (SPD) code. . Based on this, the Board denied relief. 2. This board is not an investigative body. The Board determined despite the absence of the applicant’s records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant assertion of harassment. 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. 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 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. 3. 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 "JKK" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c (2), by reason of misconduct. 4. 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 Discharge Review Boards (DRB) and Boards for Correction of Military/Naval Records (BCM/NR) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including post-traumatic stress disorder; traumatic brain injury; sexual assault; or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 5. 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, 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. 6. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011058 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1