IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220007085 APPLICANT REQUESTS: upgrade of his under honorable conditions (general) discharge and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * a different narrative reason for separation from Misconduct (Drug Abuse) to an unspecified, but presumably more favorable reason * a change of his Separation Program Designator (SPD) code * a corresponding Reentry Eligibility (RE) code APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Self-authored statement * Character reference letters (four) * Army Commendation Medal (ARCOM) documents * Honorable Discharge Certificate * Oath of Enlistment * Post-service recognition documents * Law School documents * State Bar documents * State of Michigan crime record query 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, the conduct that led to his discharge was unacceptable and the one moment he regrets in his Army career. He made a terrible choice and let himself succumb to the environment around him instead of leaning on the core values that were instilled in him. He learned from this lesson and committed himself to redeeming his character and reputation through God, education, hard work, and discipline. Since his discharge, he earned a law degree and is a proud husband and father, attorney at law, and U.S. Army Veteran. The formal reason for this application to upgrade his discharge is quite simple he wishes to serve his country again, perhaps aiding the Army Judge Advocate General Corps with the skills he has acquired since his separation. 3. On 5 November 2003, the applicant enlisted in the Regular Army for a period of 3 years. Upon completion of training, he was assigned to a unit located at Fort Bragg, NC. He was promoted to the rank/grade of specialist/E-4 on 5 November 2005. On 20 April 2006, he reenlisted for a period of 4 years. 4. On 25 January 2007, the applicant's immediate commander was informed that a urine sample provided by the applicant during a urinalysis on 16 January 2007 had tested positive for cocaine. 5. On 29 January 2007, the applicant's First Sergeant (1SG) counseled him regarding his positive drug test results and advised him that behavior and conduct of this nature was unacceptable and would not be tolerated. The 1SG informed him that an administrative flag was imposed to prevent him from receiving any favorable actions; he was recommending that the applicant be punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and he was recommending that action be initiated to separate the applicant. 6. On 9 February 2007, the applicant accepted field-grade nonjudicial punishment under the provisions of Article 15, of the UCMJ for wrongfully using cocaine between on or about 13 January 2007 and 16 January 2007. His punishment consisted of reduction from E-4 to private/E-1; forfeiture of $650.00 pay per month for two months; and extra duty for 45 days. 7. On 21 February 2007, the applicant underwent a pre-separation medical exam. It was noted that he had no significant diagnoses or conditions that warranted referral to the physical disability evaluation system and he was determined to be qualified for retention and/or administrative separation. 8. On 22 March 2007, the applicant's immediate commander notified the applicant of his intent to initiate actions to separate him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Paragraph 14-12c, by reason of misconduct (Abuse of Illegal Drugs). The specific reason for this action was the applicant's use of cocaine. The commander informed the applicant he was recommending he be separated with a general, under honorable conditions discharge. The applicant acknowledged receipt of this notification on the same day. 9. On 22 March 2007, 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 statements in his own behalf. 10. 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, by reason of abuse of illegal drugs. The applicant's intermediate commander concurred with this recommendation. 11. On 27 March 2007, the separation authority directed the applicant be discharged with the issuance of a Under Honorable Conditions Discharge Certificate. 12. Orders and the applicant's DD Form 214 show he was discharged on 20 April 2007. His DD Form 214 shows, in: (1) block 12 (Record of Service) – He completed 3 years, 5 months, and 16 days of net active service this period. (2) block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) – He was awarded or authorized the: * ARCOM * National Defense Service Medal * Afghanistan Campaign Medal * Global War on Terrorism Medal * Army Service Ribbon * Overseas Service Ribbon * North Atlantic Treaty Organization Medal * Parachutist Badge (3) block 18 (Remarks) – "IMMEDIATE REENLISTMENTS THIS PERIOD – 20031105-20060419." He completed his first full term of service. (4) block 24 (Character of Service) - His characterization of service was Under Honorable Conditions (General). (5) block 25 (Separation Authority) - The authority for his separation was Army Regulation 635-200, Paragraph 14-12c(2). (6) block 26 (Separation Code) - His Separation Program Designator Code was "JKK." (7) block 27 (Reentry Code) - His Reentry Eligibility (RE) Code was "4." (8) block 28 (Narrative Reason for Separation) - The narrative reason for his separation was "Misconduct (Drug Abuse)." 13. The applicant provides the following documents which are available in their entireties for the Board's consideration: * four character reference letters wherein the authors provide favorable comments regarding the applicant's integrity, performance, work ethic, and achievements * documents that show he was awarded the ARCOM for exceptional meritorious service from 13 April 2005 to 12 April 2006 * an Honorable Discharge Certificate awarded for his first period of enlistment ending on 19 April 2006 * his Oath of Enlistment rendered to commemorate his reenlistment on 20 April 2006 * Letters and certificates recognizing his numerous post-service achievements * documents showing his progression through Law School * documents showing, he was admitted to the State Bar to practice as an attorney and counselor at law, solicitor, and counselor in chancery * State of criminal Justice Information Center query showing he did not have a criminal record as of 1 March 2022 14. Published guidance to the Boards for Correction of Military/Navy Records (BCM/NR) clearly indicates that the guidance is not intended 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. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service, the frequency and nature of his misconduct, the reason for his separation, and whether to apply clemency. The Board found insufficient evidence of in-service mitigating factors and the evidence of post-service achievements or letters of reference the applicant provided were insufficient to support a favorable clemency determination. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation, the reason for his separation, and the codes related to his separation are not in error or unjust. 2. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by making the correction described in Administrative Note(s) below. 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 relief in excess of that described 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. ADMINISTRATIVE NOTE(S) A review of the applicant's record shows his DD Form 214, for the period ending 20 April 2007, is missing an important entry that may affect his eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry in item 18 (Remarks): CONTINUOUS HONORABLE ACTIVE SERVICE FROM 031105 UNTIL 060419 REFERENCES: 1. Title 10, USC, Section 1552(b), provides that applications for correction of military records 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 timely file within the three-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 an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, Paragraph 14-12c, by reason of Misconduct (Serious Offense). Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" an appropriate reentry code to assign to Soldiers separated under this authority and for this reason. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007085 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1