IN THE CASE OF: BOARD DATE: 4 April 2023 DOCKET NUMBER: AR20220009379 APPLICANT’S REQUEST: an upgrade of his general discharge under honorable conditions to an honorable character of service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * 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 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, at the time of the incident, he was young, and he did not always make the best choices. The bad decisions he made have followed him his whole life, and he is now trying to do all he can to make corrections and improve his life. 3. A review of the applicant's service record reveals the following: a. On 25 September 1996, the applicant enlisted into the Regular Army for 4 years. Upon completion of initial entry training and the award of military occupational specialty 14T (Patriot Missile Crewmember), orders assigned him to Korea, and he arrived at his unit on or about 10 March 1997. On 9 March 1998, he completed his tour in Korea, and orders reassigned him to an air defense battery at Fort Bliss, TX; in or around April 1998, the applicant arrived at his Fort Bliss unit. b. Between April and November 1998, the applicant's leadership issued the applicant eight counseling statements, using DA Form 4856 (General Counseling Form); five were monthly performance reviews, while three addressed the applicant's tardiness or absence from alerts, physical training, and/or work formations. The performance counseling reflected the following: * April 1998 – Specialist (SPC) lauded the applicant's motivation and willingness to learn; SPC noted that, during recent training, evaluators had cited the applicant's crew as having one of the best weapons qualification tables * July 1998 – Staff Sergeant (SSG) expressed appreciation for the applicant's motivation and dedication, and he indicated the applicant had performed well during a field training exercise * August 1998 – SSG said, overall, the applicant had done a good job, but he needed to improve his Army Physical Fitness Test score, weapons qualification score, and his work appearance * October 1998 – SPC indicated the applicant's motivation had been good, but he needed to improve his initiative and maintain discipline during formations, stating, "No one should have to tell you to settle down or stop talking in formation" * November 1998 – SPC admonished the applicant about his appearance, and told him to stop the horseplay and talking during formation c. Effective 1 December 1998, the applicant's chain of command promoted him to SPC. d. In January 1999, SSG prepared the applicant's monthly counseling for that month; SSG stated the applicant had done a great job on an external evaluation but needed to better account for his equipment and complete all tasks. Because the unit was scheduled to deploy to Kuwait in February, the applicant should take care of any personal or financial issues; (the applicant's service record is void of any documentation indicating he deployed to Kuwait). e. Between 9 February and 10 March 1999, the applicant's leadership counseled him three more times for failing to report to formations on time. f. The applicant's service record includes another seven counseling statements, using DA Form 4856 (Developmental Counseling Form): * 1 September 1999 – SSG counseled the applicant about his appearance; the applicant had failed to trim his moustache and appeared a formation in dirty boots and no rank insignia * 7 September 1999 – Sergeant (SGT) addressed the applicant's absence from a battalion awards ceremony; when asked why he was late, the applicant replied that the clocks in his apartment were set at the wrong time * 10 September 1999 – SGT counseled the applicant after discovering the applicant failed to have his identification card and identification tags in his possession * 27 September 1999 – SSG prepared a counseling form based on the applicant's failure to participate in the brigade run; the applicant told another Soldier he had to go get his physical fitness uniform, but the applicant failed to return in time * 30 September 1999 – SGT gave the applicant his monthly counseling, stating the applicant had done a good job helping the platoon but kept coming to work the "messed up" boots, a haircut that did not meet standards, and displaying an inability to come to formation on time * 1 October 1999 – SGT admonished the applicant for once again failing to report to his place of duty on time; SGT wrote he intended to recommend the applicant for Uniform Code of Military Justice (UCMJ) action * 7 October 1999 – SGT informed the applicant that numerous bill collectors had been calling the orderly room about the applicant's indebtedness; he advised the applicant as to where he could go for help but made it clear that failing to pay debts violated the UCMJ g. On 23 November 1999, following biochemical testing, the applicant's urine returned positive for cocaine. On 8 December 1999, the applicant accepted nonjudicial punishment, under the provisions of Article 15, UCMJ, for wrongful use of cocaine. Following a closed hearing, during which the applicant had a person present matters in his behalf, the applicant's battalion commander found the applicant guilty, and the punishment included reduction to private (PV1)/E-1. h. On 8 March 2000, the applicant's company commander advised him, via memorandum, that he was initiating separation action against the applicant, under the provisions of paragraph 14-12b (Acts or Patterns of Misconduct – A Pattern of Misconduct), chapter 14 (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). The commander stated his reasons were the applicant's acceptance of a field-grade NJP for cocaine use and the numerous instances where the applicant failed to report to his place of duty at the time prescribed. The commander additionally noted he was recommending the applicant receive a general discharge under honorable conditions, but the final decision rested with the separation authority. i. On 8 March 2000, after consulting with counsel, the applicant acknowledged counsel had informed him of the basis for the proposed separation action, and counsel had also advised him of his rights and the effect of waiving those rights. The applicant elected to submit statements in his own behalf. j. On 20 March 2000, the applicant's company commander prepared a memorandum for record, in which he stated the applicant had been given 7 days to submit matters but had failed to do so; as such, the commander was forwarding the applicant's separation packet to the separation authority. k. On 20 March 2000, the company commander submitted his separation recommendation to the separation authority; he cited the reasons for his recommendation and requested the separation authority waived the regulatory requirement for a rehabilitative transfer. l. On 28 March 2000, the separation authority waived the requirement for a rehabilitative transfer and approved the commander's separation recommendation, directing the applicant's general discharge under honorable conditions per paragraph 14-12b, AR 635-200. On 30 March 2000, orders discharged the applicant accordingly. m. The applicant's DD Form 214 shows he completed 3 years, 6 months, and 6 days of his 4-year enlistment contract. (1) Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) listed the following: * Army Good Conduct Medal (1st Award) * Army Service Ribbon * Overseas Service Ribbon * Driver & Mechanic Badge w/Driver-W (Wheeled Vehicle) Component Bar * Two marksmanship qualification badges (2) Under "Special Additional Information," the DD Form 214 shows the following: * Item 25 (Separation Authority) – AR 635-200, paragraph 14-12c (2) (Commission of a Serious Offense – Abuse of Illegal Drugs) * Item 26 (Separation Code (SPD) – "JKK" * Item 27 (Reentry (RE) Code) – "4" (nonwaivable disqualification for reenlistment) * Item 28 (Narrative Reason for Separation) – "MISCONDUCT" n. On 21 May 2002, the applicant petitioned the Army Discharge Review Board (ADRB), requesting an upgraded character of service. On 28 August 2002, after conducting a records review, the ADRB voted to deny relief; in the Case Report and Directive, the ADRB noted the applicant had not submitted any matters for its consideration. 4. The applicant requests the upgrade of his general discharge under honorable conditions. a. During the applicant's era of service, commanders could initiate separation action under paragraph 14-12b, AR 635-200, when Soldiers displayed a pattern of misconduct, consisting of discreditable involvement with civil or military authorities or displaying conduct that was prejudicial to good order and discipline. The regulation stated an under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. b. Commander were to use paragraph 14-12c, AR 635-200 when Soldiers had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation considered the use of illegal drugs as a serious offense, and commanders could use their discretion as to whether they initiated separation action against first-time users below the grade of sergeant, when they had less than 3-years' total military service (Active and Reserve). Per the Manual for Courts-Martial in effect at the time, Article 112a (Unlawful Use of Controlled Substances) included a punitive discharge as a maximum punishment. 5. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. 6. Published guidance to the BCM/NRs 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: 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 from active duty due to Misconduct – drug abuse. 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. 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: Except for the correction addressed in Administrative Note(s) below, 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 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. ADMINISTRATIVE NOTE(S): 1. AR 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures for the completion of the DD Form 214. The regulation required DD Form 214 preparers to enter all authorized awards and decorations. With regard to entries in the section identified as "Special Additional Information," the regulation stated: a. Item 25 – Enter the regulatory or other authority cited in the directive authorizing separation. b. Item 26 – Enter the SPD associated with the specific regulatory authority for separation, as listed in AR 635-5-1 (SPD). c. Item 27 – To determine the appropriate RE code, refer to the SPD/RE Code Cross Reference Table. 2. According to the SPD/RE Code Cross Reference Table, dated 1 October 1999, Soldiers separated with SPD codes "JKA" or "JKK" received a corresponding RE code of "3." 3. The approved regulatory separation authority for the applicant was paragraph 14-12b (A Pattern of Misconduct); the authority listed on the applicant's DD Form 214, ending 30 March 2000, is paragraph 14-12c (2) (Commission of a Serious Offense – Abuse of Illegal Drugs). 4. AR 600-8-24 (Military Awards), currently in effect, states the Korea Defense Service Medal can be awarded to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea. The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense, and Service members must have been assigned, attached, or mobilized to units operating in the area of eligibility for at least 30 consecutive days. The applicant served in Korea from 10 March 1997 to 9 March 1998. 5. Based on the foregoing, make the following corrections to the applicant's DD Form 214, ending 30 March 2000: a. Add the Korea Defense Service Medal. b. Delete the current entries in items 25 through 27 and replace with the corrected information below: * Item 25 – "AR 635-200, PARA 14-12b" * Item 26 – "JKA" * Item 27 – "3" REFERENCES: 1. Title 10, USC, 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. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor; separation authorities issued an honorable discharge certificate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. The Soldier could receive an honorable discharge when subsequent honest and faithful service over a greater period outweighed disqualifying entries in the Soldier's military record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Chapter 14 (Separation for Misconduct). The regulation stated an under other than honorable conditions character of service was normally appropriate for chapter 14 discharges, but the separation authority could direct a general discharge under honorable conditions, if warranted by the Soldier's overall service record. (1) Paragraph 14-12b stated Soldiers were subject to separation under this provision when they showed a pattern of misconduct involving acts of discreditable involvement with civil or military authorities, and/or displayed conduct that was prejudicial to good order and discipline. (2) Commander were to use paragraph 14-12c, AR 635-200 when Soldiers had committed a serious offense for which the UCMJ's maximum punishments authorized a punitive discharge. The regulation considered the use of illegal drugs as a serious offense, and commanders could use their discretion as to whether they initiated separation action against first-time users below the grade of sergeant, when they had less than 3-years' total military service (Active and Reserve). 3. The Manual for Courts-Martial in effect at the time, Article 112a (Unlawful Use of Controlled Substances) included a punitive discharge as a maximum punishment. 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) AR20220009379 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1