IN THE CASE OF: BOARD DATE: 12 July 2023 DOCKET NUMBER: AR20220011886 APPLICANT REQUESTS: Reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a more favorable reentry eligibility (RE) code, and a new request to correct the narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * ACTS Online Application with signature page * DD Form 214, for the period ending 15 November 2007 * statements of support (five) * letter, Department of Veterans Affairs (VA), dated 1 February 2021 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20200003059 on 18 March 2021. 2. As a new argument, the applicant states his punishment was unjust because another Soldier did the same thing and was able to stay in the military. He has never been arrested and does not use drugs. A recruiter encouraged him to appeal to have his RE code changed and to have drug abuse removed from his narrative reason for separation on his DD Form 214. 3. The applicant enlisted in the Regular Army on 13 September 2005 for a 3-year period. The highest rank he attained was specialist/E-4. 4. The applicant was formally counseled on 1 May 2007 for being drunk on duty. He was escorted to the Military Police station where he was given a breathalyzer test. The results showed he had a blood alcohol level of .08. 5. The applicant accepted non-judicial punishment on 9 May 2007, under the provisions of Article 15 of the Uniform Code of Military Justice, for wrongful overindulgence of intoxicating liquor or drugs resulting in incapacitation for the proper performance of his duties, on or about 1 May 2007. His punishment consisted of reduction to private first class/E-3, forfeiture of $357.00 pay, extra duty for 14 days and 14 days of restriction. 6. The applicant underwent a mental status evaluation on 18 May 2007. He was psychiatrically cleared to participate in any administrative action deemed appropriate by the command. 7. He was formally counseled on 17 Jul 2007 for testing positive for cocaine on a urinalysis conducted 13 June 2007. 8. The applicant accepted non-judicial punishment on 20 August 2007, under the provisions of Article 15 of the Uniform Code of Military Justice, for the wrongful use of cocaine, between on or about 1 June 2007 and on or about 13 June 2007. His punishment consisted of reduction to private/E-1, forfeiture of $650.00 pay per month for 2 months, extra duty for 45 days, and 45 days of restriction. 9. A DD Form 2807-1 (Report of Medical History), dated 7 September 2007, and the corresponding DD Form 2808 (Report of Medical Examination), show the applicant underwent a medical examination for separation. He reported several conditions to include frequent headaches, ringing in right ear, trouble sleeping, joint pain and shortness of breath. The applicant was found medically qualified for separation. 10. A DA Form 268 (Report to Suspend Favorable Personnel Actions [FLAG]) was initiated by the applicant’s commander on 22 October 2007, by reason of pending elimination from service. 11. The applicant's commander notified the applicant on 24 October 2007 that he was initiating action to separate him from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 14, paragraph 14-12c, for misconduct - commission of a serious offense. The commander noted the applicant’s abuse of illegal drugs as the reason for his action. The applicant acknowledged receipt of the notification memorandum the same day. 12. The applicant consulted with counsel on 25 October 2007 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, paragraph 14-12c, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He waived his rights for consideration of his case by an administrative separation board and personal appearance before an administrative separation board. He elected not to submit a statement in his own behalf. 13. The applicant's commander formally recommended the applicant's separation from service under the provision of Army Regulation 635-200, paragraph 14-12c. He recommended the applicant receive a general discharge. The intermediate commander concurred with the recommendation. 14. The separation authority approved the applicant's discharge on 26 October 2007, and directed that he be issued a general discharge. The separation authority also waived the rehabilitative transfer requirement and directed that the applicant not be transferred to the Inactive Ready Reserve. 15. Accordingly, the applicant was discharged on 15 November 2007, under the provision of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct (drug abuse). He was credited with 2 years, 2 months, and 3 days of net active service this period. His DD Form 214 further shows: * Block 26 (Separation Code) – JKK * Block 27 (Reentry Code) – 4 * Block 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) 16. The Army Discharge Review Board (ADRB) reviewed the applicant's request for a discharge upgrade on 7 May 2010. After careful consideration, the Board determined the applicant was properly and equitably discharged. His request for a change in the characterization of his service was denied. 17. The Board reviewed the applicant's petition to the ABCMR for an upgrade of his discharge and reentry code on 18 March 2021. After careful consideration, the Board determined the evidence presented was sufficient to warrant partial relief. The Board recommended the applicant’s DD Form 214 be reissued showing his characterization of service as honorable. The Board denied the applicant’s request for a change to his RE code. 18. The applicant was issued a DD Form 256A (Honorable Discharge Certificate) and a corrected DD Form 214 on 25 October 2021 which shows he was honorably discharged on 15 November 2007 under the provision of Army Regulation 635-200, paragraph 14- 12c (2), by reason of misconduct (drug abuse). His DD Form 214 further shows: * Block 26 (Separation Code) – JKK * Block 27 (Reentry Code) – 4 * Block 28 (Narrative Reason for Separation) – Misconduct (Drug Abuse) 19. The applicant provides the following: a. Five statements of support, in which the authors attest to the applicant's character. They note that he is honest, trustworthy, loyal, and hard-working. He made one mistake. He should be allowed to move forward and be as productive as possible. b. A letter from the VA, dated 1 February 2021, shows the applicant has a 60 percent (%) combined disability rating for post-traumatic stress disorder (PTSD), thoracolumbar spine strain with spasms, and tinnitus. 20. Regulatory guidance provides when an individual is discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (2), by reason of misconduct, with separation code "JKK" the appropriate narrative reason is "misconduct – drug abuse." Additionally, the established RE code for Soldiers separated under this authority and for this reason is RE code 4. 21. The Board should consider the applicant's overall record and statement in accordance with the published equity, injustice, or clemency determination guidance. 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 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. The Board applauds the character letters of support provided by the applicant, attesting to his honorable conduct. However, upon review of the applicant’s petition and available military records, the Bord determined there was insufficient evidence of in-service mitigating factors for the misconduct that would warrant a change to the applicant’s RE-Code. The Board agreed, based on evidence shown in the record, at the time of separation, the documentation supports the narrative reason for separation and is properly identified on the applicant’s DD Form 214. As such, the Board determined under liberal consideration and the preponderance of evidence, 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 reversal of the previous Board decision regarding his RE Code. Based on this, the Board denied relief. ? 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20200003059 on 18 March 2021. 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. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 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. a. This regulation identified the following separation codes, with authority and narrative reasons for separation: SPD Code Narrative Reason Regulatory Authority JKQ Misconduct (Serious Offense) AR 635-200, paragraph 14-12c JKK Drug Use AR 635–200, paragraph 14–12c(2) JKM Misconduct (Other) (To be determined) JND Miscellaneous/General Reasons AR 635–200, paragraph 5–14 JKN Misconduct (Minor Infractions) AR 635–200, paragraph 14–12a b. Additionally, the SPD/RE Eligibility Code Cross Reference Table established RE code 4 as the proper reentry code to assign to Soldiers separated under this authority and for this reason. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 (Separation for Misconduct) 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. 4. 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) AR20220011886 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1