IN THE CASE OF: BOARD DATE: 9 November 2023 DOCKET NUMBER: AR20220009090 APPLICANT REQUESTS: * Upgrade of his general discharge to honorable * Change narrative reason for separation from “misconduct-serious offense’ to something more favorable * Change Separation Code and Reentry Code * Personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * Online DD Form 149 (Application for Correction of Military Record) * Legal Representation and Brief * Enlistment/Reenlistment Document * Military Police Report and allied documents * Article 15 and allied documents, including military police investigation * Leave forms and FLAG Forms * Separation packet and allied documents * DD Forms 214, Certificate of Release or Discharge from Active Duty), ending on 19 December 2002 and on 30 December 2005 * Response from the U.S. Army Criminal Investigation Command, 3 March 2021 * DA Form 4833, Commander’s Report of Disciplinary or Administrative Action * Developmental Counseling Forms * Applicant Statement * Psychiatric Evaluation/Mental Status Evaluation * Problem List History * Chronological Records of Medical Care * Response from the U.S. Army Criminal Investigation Command * DOD 2018 Guidance to Military Discharge Review Boards and Boards for Correction of Military/ Naval Records Regarding Equity. Injustice, or Clemency Determination * Department of Veterans Affairs service-connection * Department of Justice Fingerprint Submission * North Carolina State Bureau of Investigation * Applicant Resume * College Diploma * Employee evaluation * Character Reference Letters 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 his preference for face-to-face with the Board stems from his dysgraphia disability. Dysgraphia prevents him from conveying his thoughts or expressing himself to the best of his ability. His time on active duty from start to his separation was a terrible experience due to an investigation that would eventually be unsubstantiated. When he first switched from the reserves to active duty, the FBI went to his mother’s house to look for him. His mother informed the FBI that he was in the military. The FBI was unaware that he was in the military until his mother informed them of his status. As a result, the FBI contacted CID about the investigation. Following the contact, CID contacted him and his command about the investigation and alleged charges. When CID informed him of the child porn allegations, he denied the allegations and became very enraged. He is not that kind of person, nor would he ever participate in such a hideous activity. The mere thought of being accused of such an allegation was beyond offensive. As a result of the offensive allegation, he resisted detainment and became physical with the officers when CID tried to handcuff him. He felt hopeless, angry, and hurt that he was being accused and handcuffed for such an allegation. It seemed like he was already guilty, and no one was listening to him. a. CID brought the investigation to the commander, and the commander followed suit with a FLAG. He was unofficially confined to the base during the 4-year investigation. However, the FLAG was initiated on 2 March 2005 and removed on 16 June 2005. During this time, CID kept telling him that JAG (Judge Advocate General) couldn’t help him unless charges were preferred. He was finally cleared of the child porn investigation and allegations, but the damage to his reputation and career was irreversible. Everyone treated him like he was a creep and it seemed liked every little thing he did was exaggerated. For example, there are records that reflect that he was disrespectful to Staff Sergeant (SSGH) , but he wasn’t. SSG even recommended an Army Achievement Medal for him, which he received after his separation from the Army. b. He was separated while on Rear D. The Rear D Commander wasn’t even sure why he was being separated, so he just crossed the Ts and signed. The chapter 14-12c was for having 59 live rounds in his barracks room, making a false official statement, and assault on Military Police (MP). (1) Live Rounds: He accidentally brought two magazines back in his fleck from the range. He immediately notified the first sergeant of the rounds, but he can’t recall the instructions given to him. Additionally, he had empty rounds from previous ranges in his room, but he had permission to keep the empty rounds. However, it didn’t matter that he reported the live rounds or had permission to keep the empty rounds. (2) Article 107 – He received an Article 15 for allegedly lying about leave. He did not surpass his leave days and had permission to take leave once his FLAG was lifted. Unfortunately, he does not have a copy of his leave form to prove the leave days. (3) Assault on an MP: He was command referred to the Emergency Room/Mental Health. He is not sure, but he was referred for a separation evaluation, from what he can recall. However, he did not want to go, and the MPs arrived to detain and escort him to the Emergency Room/Mental Health. As a result, the assault occurred while the MPs were trying to detain and escort him; at that point, he began to resist. c. The FBI/CID investigation ruined his career and led to extreme depression and misconduct. Even though he didn’t do anything wrong, trying to recover from being that guy under investigation for child porn seems impossible to achieve. The damage to his reputation and the depression because of his career collapsing around him led him to more detrimental decisions. For several years, he attempted to reenlist into the military. His first attempt to rejoin was with the Navy Reserves, but they told him he had too much time and not enough rank. So, he started looking for ways to fix this issue while simultaneously fighting to get joint custody of his children and obtain his passport to see his oldest daughter in Jamaica. He visited his oldest daughter while he served in the military because his military ID allowed him to travel outside the US. Additionally, during his custody battle, the judge told him that he would have a better chance of getting joint custody or visitation if he was a state employee. So, in a sense, if he enlisted into the National Guard, that would make him a state employee. Joining the National Guard would allow him to do something he loves deeply and provide the opportunity to get the one thing he loves more than life, his kids. If he must put his body back out there on the line to see his daughter, then so be it. d. The fair outcome here would be for the Board to determine: the evidence used against him was inadequate and unreliable; that this evidence does not reach the burden of proof required to separate a servicemember; and that the resulting separation and its consequences reflected on his DD Form 214 are incorrect and unjust. discharge blemish on his military record for far too long. 3. Counsel states the applicant request to upgrade in characterization of service from a General, Under Honorable Conditions (General) Discharge to an Honorable Discharge; the removal of the words “Misconduct, (Serious Offense)” as the narrative reason for his discharge; a change of separation code from “JKQ” to “MBK; and (4) an upgrade reentry code that would allow him to reenlist into the military without needing a waiver. a. The applicant was an individual who joined the military with the best intentions. After a satisfactory and honorable period of service in the U.S. Army Reserves, he was granted the honor to be able to serve on active duty. However, very shortly into his time on active duty his record and reputation were irrevocably tarnished; he found himself a subject of investigation for allegedly possessing and/or viewing child pornography. These charges were eventually proven to be false, and no punitive or administrative action came from them, but the damage had already been done. He was treated by his command and unit as if he were guilty of these charges, and they subjected him to harsh and unfair treatment from the get-go. The weight of the charges and treatment of him by his command also led to depression. Considering, at this time, the applicant already suffered from an undiagnosed condition of intermittent explosive disorder, this proved to be a recipe for disaster for him. His command could not separate him fast enough, which resulted in the command hastily rushing his separation packet through with little regard for the collection of actual evidence or meeting its requisite burden of proof: preponderance of the evidence. Because his separation was inequitable, he should be entitled to the above requested upgrades and changes to his DD Form 214. b. Counsel provides a background of the applicant’s enlistment and military service, the investigation that led to his discharge, and makes the following argument: (1) This discharge and characterization were improper because the evidence and offenses relied upon by the command were inadequate to separate the applicant [Alleged assault on a military police officer; alleged false official statement to Staff Sergeant (SSG) ; and alleged violation of a lawful regulation by having 59 live rounds of ammunition). (2) The characterization was unfair due to the applicant’s mental health condition and principals of propriety and equity should dictate an Honorable discharge (3) The memorandum released by the DoD that was designed to provide guidance to review boards was published by the Under Secretary of Defense, Robert Wilkie, in his July 25, 2018, memorandum for the secretaries of the military departments addressing “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations.” c. The fair outcome here would be for the Board to determine: the evidence used against the applicant was inadequate and unreliable; that this evidence does not reach the burden of proof required to separate a servicemember; and that, because this evidence was inadequate and/or invalid, the resulting separation and its collateral consequences reflected on the applicant’s DD Form 214 are incorrect and unjust. Therefore, for the reasons stated forth above, it is clear the applicant’s case is the exact type of discharge upgrade request that was contemplated by the DoD’s guidance. The applicant served honorably for several years and has since battled carrying the weight of the General discharge blemish on his military record for far too long. 4. Review of the applicant’s service records shows: a. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 30 October 2003, and he held military occupational specialty 91M, Nutrition care Specialist. He was assigned to Fort Carson, CO b. A U.S. Army Criminal Investigation Command Report of Investigation, dated 7 October 2004, shows (1) On 20 February 2004, this office was notified by the Federal Bureau of Investigation (FBI), Colorado Springs, of a possession of child pornography. (2) An investigation established sufficient evidence to believe that the applicant committed the offense of Possession of Child Pornography when he knowingly retained images of child pornography on his personal computer located in his barracks room. Investigation further established the applicant committed the offense of making a false official statement when he rendered a statement to this office denying he ever viewed or possessed child pornography. The investigation also revealed the applicant did not commit the offense of failure to obey a general order as the applicant downloaded child pornography onto his privately owned computer prior to being assigned to active duty. c. On 31 August 2005, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for making a false official statement that his leave had not ended. His punishment included reduction to private/E-2 and forfeiture of pay. He elected not to appeal. d. On 31 August 2005, a CID investigation revealed that after the applicant’s chain of command found he was in an unstable manner due to not taking his anti-depressants for approximately a week, the chain of command contacted the Military Police for assistance. Upon arrival, the applicant refused verbal orders of the military police and went into a fight stance showing force with two close fists. Officers subdued the applicant with a baton, placed him on a gurney and administered a sedative, and escorted him to a hospital. Military Police Reports, dated 19 September 2005, show the applicant was charged with: * Aggravated assault on a federal officer with a boxer’s fist * Resisting apprehension * Failing to obey a lawful order by a police officer e. On 13 October 2005, the applicant underwent a mental status evaluation. His Report of mental Status Evaluation shows he met the retention standards prescribed in Chapter 3 of AR 40-501 (Standards of Medical Fitness) and there is no psychiatric disease or defect that warrants disposition through medical channels. He was cleared psychiatrically for any action deemed appropriate by his chain of command. f. On 29 November 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Separation), paragraph 14-12c, for misconduct - commission of a serious offense. The commander recommended a general, under honorable conditions discharge. The specific reasons: * violating a lawful regulation by having live rounds of ammunition in his room on 31 August 2005 * making a false official statement to SSG D with intent to deceive on 17 July 2005 * committing an assault on a military police officer on 31 August 2005 g. The applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He did not qualify for an administrative board because he had less than 6 years of total service. He further indicated that he understood: * He could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge * He could submit a personal statement and submitted a statement in which he acknowledged his mistakes and indicated he still wanted to serve his country h. After the applicant’s acknowledgement, the applicant's immediate commander formally initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. The immediate commander opined that it is not feasible or appropriate to accomplish other disposition because in his opinion, the applicant is unlikely to overcome his deficiencies and be a viable member of the unit. Continued presence in the unit will reduce morale, readiness, and unit effectiveness. His chain of command recommended approval. i. On 13 December 2005, the separation authority approved the applicant’s discharge and ordered him discharged under the provisions of AR 635-200, chapter 14, by reason of misconduct - commission of a serious offense and directed his service be under honorable conditions (general). On 30 December 2005, the applicant was discharged accordingly. j. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under AR 635-200, chapter 14-12c, by reason of misconduct - commission of a serious offense with an under honorable conditions (general). (Separation Code JKQ, Reentry Code 3). He completed 2 years, 2 months, and 1 day of active service. k. There is no indication the applicant petitioned the Army Discharge Review Board for review of his discharge within that board’s 15-year statute of limitations. 5. The applicant’s DA Form 4833, Commander’s Report of Disciplinary or Administrative Action, dated 4 December 2006, reflects the charges of “making a false statement, 20 February 2004” and “possession of child pornography, 20 February 2004.” It shows the entry “On 4 Dec 06, this office coordinated with Special Agent [Redacted], FBI, NC, who stated that in Sep 06 [Redacted] Eastern District, NC, declined to prosecute due to the inability to place the subject at the crime scene. No action taken.” 6. The applicant was provided a copy of the USA CID Report of Investigation. He submitted a rebuttal to the CID investigation to this Board. However, since he has not appealed or requested amendment to the CID Report of Investigation to the U.S. Army Crime Records Center, his appeal to regarding the Report of Investigation to this Board is premature. 7. The applicant provides several character reference letters from individuals who describe him: * as a man of great principles and great dedication * he conducts himself with professional bearing; he is dependable and dedicated * self-dedicated, dependable, and responsible; well respected by the staff 8. By regulation, Soldiers are subject to separation under the provisions of paragraph 14-12c of AR 635-200 for a commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 9. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 10. MEDICAL REVIEW: a. Background: The applicant is requesting an upgrade of his general discharge to honorable, a narrative change in reason for separation from “misconduct - serious offense’ to something more favorable, change in separation and reentry code, and a personal appearance before the board. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 30 October 2003. * On 31 August 2005, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for making a false official statement. * On 31 August 2005, a CID investigation revealed that after the applicant’s chain of command found he was in an unstable manner due to not taking his anti- depressants for approximately a week, the chain of command contacted the Military Police for assistance. Upon arrival, the applicant refused verbal orders of the military police and went into a fight stance showing force with two close fists. * On 29 November 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Separation), paragraph 14- 12c, for misconduct - commission of a serious offense. The commander recommended a general, under honorable conditions discharge. The specific reasons: * violating a lawful regulation by having live rounds of ammunition in his room on 31 August 2005 * making a false official statement to SSG D with intent to deceive on 17 July 2005 * committing an assault on a military police officer on 31 August 2005 * On 30 December 2005 the applicant was discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under AR 635-200, chapter 14-12c, by reason of misconduct - commission of a serious offense with an under honorable conditions (general). c. The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, his ABCMR Record of Proceedings (ROP), legal brief, self-authored statement, treatment records, character references, and documents from his service record and separation packet. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant’s attorney states that after a satisfactory and honorable period of service in the U.S. Army Reserves, the applicant was granted the honor of being able to serve on active duty. However, very shortly into his time on active duty, the applicant’s record and reputation were irrevocably tarnished, since he found himself the subject of an investigation for allegedly possessing and/or viewing child pornography. The applicant was treated by his command and unit as if he were guilty of these charges, and they subjected him to harsh and unfair treatment. The weight of the charges and treatment by his command led to depression since the applicant was suffering from an undiagnosed condition of intermittent explosive disorder. Per his attorney, the applicant was separated hastily, with his command rushing his separation packet through with little regard for the collection of evidence or meeting its requisite burden of proof. The applicant, in his self-authored statement, reports the child pornography investigation and allegations, damaged both his reputation and career. He states, “everyone treated me like I was a creep and … every little thing I did was exaggerated”. The applicant reports that the FBI/CID investigation ruined his career which led to extreme depression and his misconduct. e. The issue of the child pornography charges were not the basis of separation and will not specifically be addressed as part of this opine. However, the record indicates the CID, “investigation established sufficient evidence to believe that PF Smith committed the offense of Possession of Child Pornography when he knowingly retained images of child pornography on his personal computer located in his barracks room”. In a mental health encounter, dated 01 August 2017, he stated his roommate watched pornography on his computer and the applicant was wrongly accused. The applicant’s account of the possession of child pornography is inconsistent with the affidavit from his mother and his prior accounts, where it was alleged the child pornography was placed on the applicant’s family computer when he had the computer serviced. f. Active-duty electronic medical records indicate psychiatry notes on 18 May 2005 and 1 June 2005, where the applicant was diagnosed with Explosive Disorder, Intermittent and he was treated with antipsychotic medication. In another note dated 08 September 2005, he presented for services after being discharged from an inpatient psychiatric hospitalization. He reported not feeling ready to leave the hospital and wanted more time inpatient. He stated his symptoms fit Intermittent Explosive Disorder more than Bipolar Disorder. At the time, he reported wanting to stay in the army but was aware of needing to get his moods/anger under control. Although the applicant claims his BH condition was undiagnosed, the record indicates he was diagnosed while in military service, was offered treatment, and his command actively advocated on his behalf. In an email dated 12 September 2005, there is clear evidence of command intervening on his behalf and requesting reduced charges. In further attempts to support the applicant, a psychiatry note dated 22 September 2005, documents a discussion regarding a possible MEB. The provider informed the applicant that based on his diagnosis and his current medication, he would be eligible for a MEB. The applicant was adamantly against this recommendation and insisted he would do fine. g. On 13 October 2005, the applicant underwent a mental status evaluation. The report indicated he met retention standards and there was no psychiatric disease or defect that warranted disposition through medical channels. The applicant was described as mentally responsible and able to distinguish right from wrong and adhere to the right. He was cleared psychiatrically for any action deemed appropriate by his chain of command. h. The applicant is 10% service-connected for Mood Disorder and has inconsistently accessed care for mental health services via the VA. He initially presented to the VA requesting mental health treatment following his discharge from military service. A mental health intake assessment to establish care, dated 22 June 2006, documents his diagnoses of intermittent explosive disorder, depression NOS, and a rule-out of bipolar II. The applicant described a long history of violent and impulsive behavior, starting with a suicide attempt by drinking bleach at age 8. He reported seven psychiatric hospitalizations, over seven arrests for assaults, and 1 year in prison for assault. He shared being forcibly discharged from military service for numerous impulsive/aggressive acts. In a mental health encounter, dated 31 July 2006, the applicant denied a history of episodic mood elevation, impulsivity, or mania. On 07 August 2006, the applicant was diagnosed with Depressive disorder, NOS and Personality Disorder, NOS with paranoid and schizotypal features. A psychiatry note dated 31 Jan 2007 once again indicates no signs of psychosis or mania. The provider indicates the applicant had not displayed any signs of psychosis or mania, however, given his history of suicidality and violence his medication regime was continued since the applicant was stable. i. After a break in service, the applicant presented to the VA on 28 July 2008 and again on 22 August 2008 requesting a fitness for duty evaluation in order to return to military service. He was informed that as a civilian psychiatrist, the provider could not evaluate his ability to function as a soldier. During that encounter, the applicant reported no psychiatric symptoms during the past two years and denied taking any psychotropic medication during that time. He was not seeking treatment for mental health services and did not meet criteria for any diagnosis. After an almost eight-year break in service, the applicant once again presented to the VA for an initial psychiatric assessment on 27 October 2015. He reported having engaged in outpatient psychiatric services with a civilian provider and was seeking to transfer his care to the VA. His participation with the VA mental health services remained inconsistent. j. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is evidence the applicant had a behavioral health condition during military service. However, his BH condition would not mitigate his discharge. 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 asserts a mitigating condition. (2) Did the condition exist or experience occur during military service? Yes, the applicant is 10% service-connected for Mood Disorder. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant was separated for violating a lawful regulation by having live rounds of ammunition in his room, making a false official statement, and assaulting a military police officer. None of his diagnoses have a nexus with his misconduct, nor do they interfere with the capacity to distinguish right from wrong and act in accordance with the right. BOARD DISCUSSION: 1. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. 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, 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 BH Advisor. The Board found the evidence of post-service achievements provided by the applicant insufficient in support of a clemency determination. The Board found insufficient evidence of in-service mitigating factors and concurred with the conclusion of the medical advising official regarding his misconduct not being mitigated by a behavioral health condition. Based on a preponderance of the evidence, the Board determined the character of service the applicant received upon separation and the reason for his separation were not in error or unjust. 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 (AR) 635-200 (Active Duty Enlisted Administrative Separations) set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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 was normally appropriate for a Soldier discharged under this chapter. 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 a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. The separation document provides the individual with documentary evidence of his or her military service. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. The DD Form 214 provides a brief, clear-cut record of active duty service at the time of a Soldiers release from active duty, retirement, or discharge, and it is not intended to have any legal effect on termination of a Soldier's service. Chapter 2 states: * Block 25, the separation authority, this is obtained from the regulatory directives authorizing the separation * Block 26, separation code, this is obtained from AR 635–5–1, which provides the corresponding SPD code for the regulatory authority and reason for separation * Block 27, RE Code, AR 601–210 (Active and Reserve Components Enlistment Program) determines reentry eligibility and provides regulatory guidance on reentry codes * Block 28, narrative reason for separation, this is based on regulatory or other authority and can be checked against the cross reference in AR 635–5–1 4. AR 635-5-1 (Separation Program Designator (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 to Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, due to misconduct (serious offense-other than drugs). The SPD/RE Code Cross Reference Table, dated 31 March 2003, stipulated that an SPD code of JKQ had a corresponding RE-3 code. 5. AR 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Chapter 3 prescribes the basic eligibility for prior-service applicants for enlistment and includes a list of Armed Forces RE codes. * RE code 1 applies to persons who completed an initial term of active service who were fully qualified for enlistment when separated * RE code 3 applies to persons who are not qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE code 4 applies to persons separated from their last period of service with a non-waivable disqualification 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 under other than honorable conditions, 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. 7. 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; TBI; sexual assault; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 8. 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/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. 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 based on 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. 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. 9. Section 1556 of Title 10, United States 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. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009090 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1