IN THE CASE OF:    
 
  BOARD DATE:  19 September 2023 
 
  DOCKET NUMBER:  AR20220011849 
 
 
APPLICANT REQUESTS:  In effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge, and a different separation code. 
 
APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD:  
 
DD Form 149 (Application for Correction of Military Record), with a second faxed copy with his signature dated 10 March 2023  
 
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:   
 
a.  He showed up to remedial physical training five minutes before it was supposed to start at 10 am. They cancelled it and everyone was gone but he was labeled as a no-show. He really believes he was separated due to a positive HIV test. He had tested positive several days earlier and the doctor reported it to his chain of command. He feels punished but has never tested positive again.  
 
b.  He is not seeking Department of Veterans (VA) benefits, only to open more doors. He is losing everything waiting on Social Security Disability Income for medical conditions the State say disqualifies him from operating a commercial vehicle. He also needs help with utilities and food. The city's Veterans Outreach Center denied him assistance due to his discharge. He has never considered himself a veteran because he did not go to combat. But was informed he is a veteran. An upgrade would restore his pride in feeding 350 Soldiers daily in the mess hall and 129 in the field.  
 
3.  On 14 November 1985, the applicant enlisted in the Regular Army, for a 4-year service obligation. Upon award of his military occupational specialty 94B (Food Service 
Specialist) and airborne training, he was assigned to Fort Bragg, NC, and arrived on 2 May 1986.  
 
4.  On 16 July 1987, the applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty [School of the Soldier] at the time prescribed, on or about 13 June 1987. His punishment included reduction to E-1, forfeiture of $153.00, 14 days extra duty, and 14 days restriction.  
 
5.  On 8 October 1987, the applicant's commander notified the applicant of his intent to initiate actions to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct - commission of a serious offense. The commander recommended a general discharge and cited the specific reasons as: 
 
• failure to go at the time prescribed to his appointed place of duty 

• writing a $130.00 check to the Fort Bragg Main Exchange, which was returned due to insufficient funds 

• unlawfully making long distance phone calls on another Soldier’s calling card 

• charging calls to her home phone without her knowledge.  


 
6.  On 14 October 1987, the applicant underwent a separation and mental status examination. The supporting documentation shows he listed several ailments including back pain and kidney disease but was in good health and not taking any medications [there is no indication he ever had a positive HIV test]. He had no significant mental illness, had the mental capacity to understand and participate in board proceedings, and was qualified for separation. He acknowledged receipt on 22 October 1987. 
 
7.  On 27 October 1987, the applicant consulted with counsel, and was advised of the basis for the proposed separation action, his available rights, and the effects of waiving those rights. He waived his rights and elected to submit a statement in his own behalf, however, a statement is not available for review.  
 
8.  On 11 November 1987, the applicant's commander formally recommended his separation, under the provisions of Army Regulation 635-200, Chapter 14-12c, due to misconduct. The commander noted, the applicant had not demonstrated a desire to improve since receiving NJP, and despite being counseled for a returned check he had issued two additional checks, also returned for insufficient funds. All counseling and assistance had been met with failure. The applicant's chain of command recommended approval of his separation.  
 
9.  On 19 November 1987, the Staff Judge Advocate found the recommended separation legally sufficient. On 30 November 1987, consistent with the chain of 
command's recommendation, the separation authority approved the separation action and directed the issuance of a General Discharge Certificate.  
 
10.  On 23 December 1987, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions Army Regulation 635-200, paragraph 14 - 12c, with Separation Code “JKQ” by reason of misconduct – commission of a serious offense. His service was characterized as under honorable conditions (general), and he was credited with completing 2 years, 1 month, and 10 days of net active service.  
 
11.  In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance.  
 
12.  By regulation (AR 635-5-1), Separation Code JKQ was the appropriate code to assign Soldiers separated under the provisions of AR 635-200, Chapter 14, by reason of misconduct - commission of a serious offense.  
 
BOARD DISCUSSION:   
 
After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was discharged for misconduct – commission of a serious offense The Board was not persuaded by the applicant’s contention that he was separated due to positive HIV test. His service record reflects the specific reason for his separation as his failure to go at the time prescribed, writing bad checks, unlawfully making long distance phone calls on another Soldier’s calling card, and charging calls to her home phone without her knowledge, and he received a general discharge. Additionally, the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. Additionally, the Board noted he was separated under the provisions of chapter 14 of AR 635-200 for misconduct – commission of a serious offense. The appropriate separation code associated with such discharge is KJQ, which is correctly listed on his DD Form 214.  
 
  
BOARD VOTE:   
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/19/2023

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 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code "JKQ" is the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, by reason of “misconduct-commission of a serious offense.  
 
3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. The version in effect at the time provided that:   
 
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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
c.  Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A discharge under other than honorable conditions (UOTHC) was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record.  
 
4.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRB) and Service 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, 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//