IN THE CASE OF: BOARD DATE: 16 March 2023 DOCKET NUMBER: AR20220007712 APPLICANT REQUESTS: An upgrade of his under other than honorable conditions (UOTHC) discharge and appropriate changes to his separation code, reentry (RE) code, and narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) * Counsel's Cover Sheet and Legal Brief (16 pages), dated 16 May 2022 * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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. Through counsel, the applicant states that his discharge was unfair at the time and remains so. The discharge is both procedurally and substantively defective. The applicant requests liberal consideration and refers to the Kennedy Settlement. 3. Counsel states: a. The applicant’s discharge was unfair at the time and the UOTHC discharge is inequitable now. He requests that his discharge be upgraded to an honorable discharge and the characterization of his discharge be changed to "Secretarial Authority," with RE code "1." b. The applicant successfully completed basic training and advanced individual training and was assigned to Fort Carson, CO. During his time at Fort Carson, he was deployed to Kuwait for seven months, after Kuwait he went to the Sinai Peninsula for a time. He stayed on base and there was some occasional mortar fire but no major incidents. His transition back to the U.S. was smooth and he was given time off. c. The applicant and his friends went to a bar and became extremely intoxicated. He and others tried cocaine while under the influence of alcohol. A urinalysis was conducted on an unspecified date, and he was positive for cocaine. The criminal investigation department held an investigation due to multiple Soldiers testing positive for cocaine. The applicant never met with an attorney; they only spoke over the phone on several occasions. He was advised to take a Chapter 10 discharge, and no felony would be on his record. He was not given any disclosure regarding his case. d. The applicant has been successful outside the Army, and he desires an upgrade. He has never been in trouble with substance abuse before the singular incident in the Army. He attributes the drug use to a foolish mistake he made while intoxicated. It has never occurred since. He hopes that his success and his promising career will help him move beyond the mistake he made. 4. On his DD Form 293, the applicant notes other mental health issues are related to his request, as contributing and mitigating factors in the circumstances that resulted in his separation. 5. The applicant enlisted in the Regular Army on 14 July 2014, for a 3-year and 16 weeks service obligation. Upon completion of training, he was awarded military occupational specialty 11B (Infantryman). 6. The applicant served in Kuwait in support of Operation Enduring Freedom (Spartan Shield) from 10 February 2015 through 10 November 2015. 7. Court-martial charges were preferred against the applicant on 30 January 2017 for violations of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with wrongfully using cocaine on or about 3 December 2016. 8. On 7 February 2017, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. In his request for discharge, he acknowledged his understanding that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veteran Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. a. He elected not to submit a statement in his own behalf. b. Subsequently, the applicant's chain of command recommended approval of his request for separation, with an UOTHC discharge. 9. The applicant on 22 February 2017 noted that he did not suffer from Post-Traumatic Stress Disorder or Traumatic Brain Injury as a result of his deployment. 10. The separation authority on 23 February 2017 approved the applicant's request for discharge in lieu of court-martial. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC service characterization. 11. The applicant was discharged on 2 March 2017. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. He was reduced to the lowest enlisted grade and his service was characterized as UOTHC. He was credited with completing 2 years, 7 months, and 19 days of net active service this period. He had continuous honorable active service from 17 July 2014 through 2 December 2014. His awards and decorations include the Global War on Terrorism Service Medal. 12. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 13. Published guidance to the Service 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. 14. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is applying to the ABCMR requesting a discharge upgrade under the liberal consideration policies. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 shows he entered the regular Army on 14 July 2014 and was discharged under other than honorable conditions on 2 February 2017 under the separation authority provided in chapter 10 of AR 635-200, Active Duty Enlisted Administrative Separations (19 December 2016): Discharge in Lieu of Trial by Court-Martial. It does not lists a period of Service in a hazardous duty pay area. c. A Charge Sheet (DD form 458) completed on 30 January 2017 shows the applicant was charged with wrongful use of cocaine on or about 3 December 2016. d. On 7 February 2017, the applicant voluntarily requested discharge in lieu of trial by court-marital under chapter 10 of AR 635-200. On 22 February 2017, the applicant signed the statement “I do not report suffering from either Post-Traumatic Stress Disorder or Traumatic Brain Injury as a result of deployment overseas in support of contingency operation within the last 24 months.” e. The applicant underwent a pre-separation mental status evaluation on 28 February 2017 at which time he denied suicidal ideation, a history of behavioral health hospitalizations, a history of violence, use of psychiatric medications, and any current behavioral health concerns. f. The only other mental health encounters were related to his positive urine drug screen for cocaine and show he was to attend Alcohol and Drug Abuse Prevention (ADAPT) training on 6-7 March 2017. A 10 March 2017 encounter shows he did not attend the training, the provider’s thought being the applicant may have been involved in out-processing. g. The commanding general of the 4th Infantry Division and Fort Carson approved his discharge with an under other than honorable characterization of service on 23 February 2017. h. No medical documentation was submitted with the application. Review of his records in JLV shows he is not registered with the VA and has no diagnosed mental health conditions. i. It is the opinion of the ARBA medical advisor that a discharge upgrade based upon a medical condition is not warranted. j. However, given no evidence of poor performance or other episodes of misconduct in the supporting documentation or iPERMS, the applicant’s status as a junior enlisted Soldier at the time of his single infraction, and that he was not referred to the Army Substance Abuse Program (ASAP) and thus given an opportunity for rehabilitation, it is recommended the Board consider a discharge upgrade based on clemency criteria. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a behavioral health or other medical condition. The Board did, however, find the character of service too harsh for a one-time offense committed by a junior enlisted Soldier, and determined partial relief is appropriate. Based on a preponderance of evidence, the Board determined the applicant’s character of service should be changed to under honorable conditions (general) but the reason and authority are not in error or unjust and should not be changed. Because the original character of service resulted in his reduction to the lowest enlisted pay grade, this relief will involve restoration of his grade. 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 reissuing his DD Form 214 to show his character of service as under honorable conditions (general), to show his rank /grade as specialist/E-4, and to show the effective date of his pay grade as 14 July 2016. 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. REFERENCES: 1. Title 10, U.S. Code, 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. Title 10, U.S. Code, Section 1556, provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 5. 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. It states that the separation code "KFS" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, In Lieu of Trial by Court- Martial. Additionally, the SPD/RE Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 6. 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 7. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. 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 DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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. 9. 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) AR20220007712 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1