IN THE CASE OF: BOARD DATE: 9 May 2023 DOCKET NUMBER: AR20220011428 APPLICANT REQUESTS: * upgrade his already-upgraded characterization of service from under honorable conditions (general) to honorable * change in his narrative reason for separation from "misconduct: to "secretarial authority" with corresponding separation code, and to change his reentry (RE) code from "RE-3" to "RE-1." APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 17 August 2022 * brief from legal counsel, undated * self-authored timeline and statement, undated * Orders: BG-141-0058, 21 May 2010 * Notification of separation, 14 December 2010 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 7 March 2011 * 2-character statements, undated * Resume, undated * 2 college transcripts (DeVry University and Jefferson Community Technical College), 2012 to 2022 FACTS: 1. The applicant's legal counsel states: a. The applicant enlisted in the Army on 15 November 2007. During his service, the applicant specialized as an Infantryman for a total of three years and one month. During that time, the applicant served overseas for eleven months and twenty-one days. He received numerous awards throughout the duration of his service. He was awarded the Army Commendation Medal, the Army Achievement Medal, the Meritorious Unit Commendation, the National Defense Service Medal, the Iraq Campaign Medal with Campaign Star, the NCO Professional Development Ribbon, the Army Service Ribbon, the Global War on Terrorism Service Medal, and the Overseas Service Ribbon.\ b. The applicant deployed to Baghdad from October 2008 to October 2009. He spent 12 months in a warzone. The applicant was charged with taking initial reports from troops that were dispatched to incidents of enemy threats. He was required to create PowerPoint report regarding the incidents and often had to view very gruesome photos for the reports, which had a lasting effect on him. While deployed, the applicant shared a trailer with a roommate, who was killed in action by shrapnel from an enemy mortar. He was tasked with creating the report for his roommate's death. Following his roommate's death, he stayed in the trailer alone for two weeks before requesting a new roommate. The applicant felt let down by the military in that moment, because they allowed him to remain alone following his roommate's death. Following that deployment, the applicant was stationed at Fort Bragg, North Carolina, to await orders. While in Fort Bragg, the applicant received orders that he would be assigned to the 525th Battlefield Service Brigade (BFSB). The 525th BFSB was ordered to Afghanistan for Operation Enduring Freedom in July 2010. c. The applicant also suffered a close family loss while serving in the Army. The applicant's step-grandfather passed away of a heart attack, and he was prohibited from attending the funeral because the decedent was not of a blood relation. He was raised by his stepfather from an early age, who also passed away from a heart attack. The relationship with his stepfather led to a close relationship with his step-grandfather. As a result of being prohibited from attending his funeral, he suffered immense pain and regret because his mother and sister were left to manage the loss, and he could not say his goodbyes to a close family member. He had to handle that loss alone. d. On 27 October 2010, the applicant received a Field Grade Article 15 for stealing a government laptop of a value greater than $100 for personal use (in violation of Article 121 of the UCMJ) and for being absent without leave (AWOL) from on or about 14 September 2010 until on or about 2 October 2010 (in violation of Article 86 of the UCMJ). The applicant was discharged on 7 March 2011 after 3 years, 3 months, and 5 days of service, with an under other than honorable conditions character of service, the narrative reason for separation of Misconduct, (Serious Offense), a separation code "JKQ," and the reentry code" RE-3." The Applicant is seeking to upgrade his discharge for reasons of propriety and equity. 2. The applicant provides a self-authored statement wherein he states in effect: a. He joined the military in 2007 and was stationed at Fort Riley, Texas. He deployed to Baghdad, Iraq from October 2008 to October 2009 with the 2nd Infantry Division where he never had any discipline issues and received multiple awards for his service while deployed. b. After deployment, he was notified that he was being assigned to Fort Bragg. He realized that he was not going to be assigned to the 82nd Brigade like his reenlistment officer had informed him, and he made the decision to take longer than the time allowed off to move himself to Fort Bragg. He states he may have been AWOL for 1 or 2 weeks. c. While stationed at Fort Bragg he began to "act out." He had gotten divorce and started drinking and hanging out with others who drank. He made the decision to take a non-classified laptop from storage and use it for personal use. His barracks room was searched, and the laptop was found. He knew he was in trouble and went AWOL for 2 to 3 weeks. Upon returning, he was given the option to be discharged or transfer to a different unit. He made the decision to be discharged. d. He states he takes full responsibility for his mistakes in the Army. However, he wishes he had a better support system when he was in Iraq. He spent 12 months in a war zone where he ran classified programs. His roommate was killed by shrapnel while unloading from a Mine-Resistant Ambush Protected (MRAP) vehicle on base. He was tasked with creating the report for his death and then spent 2 weeks in his trailer alone before he asked his leadership for a new roommate. He feels his leadership let him down by allowing him to stay in his trailer alone for 2 weeks e. Since his discharge he has straightened his life up and helps support his family. He earned his commercial driver's license, is now married, and has a career at UPS. He is an active member of his church and has earned his associate degree. Additionally, having his discharged upgraded would allow him to receive the benefits he lost. 3. The applicant enlisted in the regular Army on 15 November 2007. 4. Orders: BG-141-0058, dated 21 May 2010, show the applicant was issued temporary change of station orders for the purpose of deployment in support of Operation Enduring Freedom (Afghanistan) with a report date of 27 July 2010. The applicant's record does not contain any evidence he deployed to Afghanistan. 5. His records contains a military police report dated 8 September 2010. Where he is listed as the subject in the report. The report shows, at 5:49 pm on 8 September 2010 reported a larceny of government property to the Provost Marshal's Office (PMO). Investigation by disclosed that on or about 31 July 2010, the applicant removed 1 Dell Latitude D830 laptop owned by: the government from the S-3 shop in building #2-4528. stated the building was secure. notified about the applicant having removed the laptop. An inspection of the applicant's barracks room, conducted between 3:00 and 3:30 pm on 8 September 2010, revealed the laptop in plain view on his bed. The applicant was advised of his rights on a DA Form 3881 (Rights Warning Procedure/Waiver Certificate), further processed, and released to his unit on a DD Form 2708 (Receipt for Pre- Trial/Post-Trial Prisoner or Detained Person) 6. The applicant’s record contains DA Forms 4187-E, which show the below changes to his duty status: Present for duty (PDY) to AWOL – 14 September 2010 and AWOL to PDY – 2 October 2010. 7. On 19 October 2010, he accepted field grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for stealing a laptop, of a value of over $100.00, on or about 31 July 2010, and for being AWOL on or about 14 September 2010 and remaining absent until on or about 2 October 2010. His punishment consisted of reduction to the rank/grade of Private/E-1, 45 days restriction and 45 days extra duties. 8. On 3 November 2010, the applicant underwent a medical examination for the purpose of separation. The doctor did not note any medical issues and found the applicant qualified for separation. 9. On 18 November 2010, the applicant underwent a mental health examination. The doctor did not note any mental health issues and found the applicant had the mental capacity to understand and participate in separation proceedings. 10. On 14 December 2010, the applicant's immediate commander notified him that he was recommended for discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14, section 3, for commission of a serious offense. The commander noted the reason for the recommendation was due to the applicant's field grade Article 15 for stealing a government laptop of value greater than $100.00 and for being absent without leave from on or about 14 September 2010 until on or about 2 October 2010. The commander recommended an under other than honorable conditions characterization of service. 11. On 14 December 2010, the applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him under the provisions of AR 635-200, chapter 14, paragraph 14-12(c) commission of a serious offense, and the rights available to him; and the effect of any action he took in waiving his rights. He acknowledged/ requested: a. He understood that he was entitled to have his case heard by an administrative separation board because he was recommended for an under than honorable conditions characterization of service for discharge. However, he waived his right to a personal appearance and consideration of his case by an administrative separation Board and elected not to submit statements on his own behalf. Further, he acknowledged he was making his request/election of his own free will and was not subject to any coercion whatsoever by any person. b. He understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further understood that, as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life. He understood that if he received a discharge certificate/character of service which was less than honorable. 12. On 15 December 2010, the applicant's immediate commander submitted a formal recommendation for discharge under the provisions of AR 635-200, chapter 14-12c, for commission of a serious offense. The intermediate commanders concurred with the recommendation for discharge under the provisions of AR 635-200, paragraph 14-12c for commission of a serious offense with a characterization of service of under other than honorable conditions. Both intermediate commanders recommended the applicant not be transferred to the Individual Ready Reserve. 13. On 9 February 2011, the separation authority approved the recommended discharge under the provisions of AR 635-200, chapter 14, section 3, paragraph 14-12c, for commission of a serious offense, and directed the applicant be reduced to the rank/grade of PVT/E-1 with an under other than honorable conditions character of service. 14. The applicant's DD Form 214 shows he was discharged on 18 March 2011, under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct (serious offense), in the rank/grade of PV1/E-1, and his service was characterized as under other than honorable conditions (Separation Code JKQ, Reentry Code 3). He completed 3 years, 3 months, and 18 days of net active service. His DD Form 214 includes the following information or entries: a. He was awarded or authorized the: * Army Commendation Medal * Army Achievement Medal * Meritorious Unit Commendation * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with 1 bronze service star * Overseas service ribbon b. Block 18 (Remarks) - "CONTINUOUS HONORABLE ACTIVE SERVICE: 20071115-20090421//IMMEDIATE REENLISTMENT THIS PERIOD -- 200171115- 20090421" 15. A letter from the Army Discharge Review Board (ADRB), dated 24 July 2012, shows the ADRB notified the applicant that it was determined he was properly and equitably discharged and his request for a change in the character and/ or reason of his discharge was denied. 16. ABCMR Docket Number AR20180003163, dated 15 January 2020, shows the Board found insufficient evidence of in-service mitigating factors for the misconduct, however, the applicant's remorse provided weight for a clemency determination. The Board found that relief was warranted base upon guidance for consideration of discharge upgrade requests. 17. The applicant was reissued a DD Form 214 for the period ending 18 March 2011 showing his character of service as Under Honorable Conditions (general). 18. The applicant provided his resume, which shows his military service and other jobs he held between 2007 to 2022 as well as his college transcripts from DeVry University and Jefferson Community Technical College, showing he attended college between 2012 to 2022. 19. He provides the following two supporting statements: a. Mr. states the applicant has been a member of who serves weekly in the kid's ministry during church service. He is a committed, bright, faithful, and to be a man of great character. b. Mr. states, he has worked with the applicant for over 3 years at UPS. The applicant's responsibilities are to train, lead, and develop those within his hierarchy. He is well organized, manages his time well, and is knowledgeable of his role as well as other business partner roles. Additionally, he is great human being, employee, and family man. 20.. Regulatory guidance provides when an individual is discharged under the provisions of AR 635-200, Chapter 14, by reason of misconduct, an under other than honorable conditions characterization of service is normally appropriate. 21. MEDICAL REVIEW: a. The applicant requests an upgrade his characterization of service from under honorable conditions, general, to honorable, change in his narrative reason for separation from "misconduct: to "secretarial authority," with corresponding separation code, and to change his reentry (RE) code from "RE-3" to "RE-1." The applicant appears to assert his misconduct was related to Other Mental Health Issues. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 15 November 2007; 2) His DD 214 shows he served in Iraq from 7 October 2008 to 27 September 2009; 3) On 19 October 2010, the applicant accepted field grade non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for stealing a laptop, of a value of over $100.00, on or about 31 July 2010, and for being AWOL on or about 14 September 2010 and remaining absent until on or about 2 October 2010; 4) On 14 December 2010, the applicant's immediate commander notified him that he was recommended for discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14, section 3, for commission of a serious offense; 5) On 14 December 2010, the applicant acknowledged he was advised by his consulting counsel of the basis for the contemplated action to separate him; 6) The applicant's DD Form 214 shows he was discharged on 18 March 2011, under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct c. The military electronic medical record, AHLTA, VA electronic medical record, JLV, ROP, and casefile were reviewed. A review of AHLTA showed the applicant’s only military BH-related engagement occurred on 18 November 2010, whereby he underwent a mental status evaluation, related to his Chapter 14 separation. He was found to not have a BH diagnosis and was psychiatrically cleared for administrative separation. Records also showed the applicant underwent a medical examination on 3 November 2012, whereby he was medically cleared for administrative separation. No other military BH-related records were provided for review. A review of JLV shows the applicant 10 percent service-connected for tinnitus. Records are void of any BH-related care. No civilian BH-related records were provided for review. d. The applicant appears to contend that his misconduct was due to Other Mental Health Issues related to the loss of a roommate during deployment and loss of a family member. A review of the records was void of any BH-related diagnosis or treatment history for the applicant, during or after service. While it is understandable that loss/grief can negatively impact one’s mood, motivation, perspective, and other areas of functioning, misconduct characterized by larceny is not natural sequela of loss/grief. Also, as the applicant acknowledged in his personal statement that he went AWOL because he knew he was in trouble for stealing, the misconduct characterized AWOL appears associated with larceny and not related to Other Mental Health Issues. Given the above, the applicant’s misconduct characterized by larceny and going AWOL is not mitigated by Other Mental Health Issues. e. Based on the available information, it is the opinion of the Agency BH Advisor that there is not sufficient evidence in the records that the applicant had a condition or experience during his time in service. However, he appears to contend his misconduct was associated with Other Mental Health Issues, and per Liberal Consideration policy, his assertion is sufficient to warrant the Board’s consideration. 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 appears to contend his misconduct was associated with Other Mental Health Issues. (2) Did the condition exist or experience occur during military service? Yes. (3) Does the condition or experience actually excuse or mitigate the discharge? No. The applicant appears to contend that his misconduct was due to Other Mental Health Issues related to the loss of a roommate during deployment and loss of a family member. A review of the records was void of any BH-related diagnosis or treatment history for the applicant, during or after service. While it is understandable that loss/grief can negatively impact one’s mood, motivation, perspective, and other areas of functioning, misconduct characterized by larceny is not natural sequela of loss/grief. Also, as the applicant acknowledged in his personal statement that he went AWOL because he knew he was in trouble for stealing, the misconduct characterized AWOL appears associated with larceny and not related to Other Mental Health Issues. Given the above, the applicant’s misconduct characterized by larceny and going AWOL is not mitigated by Other Mental Health Issues. 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 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, and the reason for separation. a. The applicant was discharged for misconduct – serious offense (theft and AWOL). The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to mitigate the AWOL but not the theft. The applicant provides supporting statements who describe him as a man of great character who is involved in the church. He is also described as organized and knowledgeable of his role as well as other business partner roles. However, the Board previously upgraded his character of service to general, and the current evidence does not support a further upgrade. Based upon a preponderance of the evidence, the Board determined that the upgraded character of service the applicant received upon separation was not in error or unjust. b. The applicant’s narrative reason for separation is based on the fact that he had committed misconduct in the form of AWOL and theft. Absence the misconduct, there was no fundamental reason to initiate separation action against him. The under lying reason for his separation was his misconduct. The only valid narrative reason for separation is misconduct, which is correctly listed on his DD Form 214. Additionally, Separation Code JKQ is the correct Separation Code for an enlisted Soldier discharged under chapter 14 of AR 635-200 for misconduct/serious offense (other than drugs). The corresponding RE Code associated with this Separation Code is 3, which is also correctly listed on his DD Form 214. 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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. AR 635-200, in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Chapter 3, section II (Type of Characterization or Description) stated the following types of characterization of service or description of service are authorized: separation with characterization of service as Honorable, General (under honorable conditions), or Under Other Than Honorable Conditions, and Uncharacterized (for entry level status) are authorized. These separation types will be used in appropriate circumstances unless limited by the reason for separation. (1) Paragraph 3-7a stated an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. (2) Paragraph 3-7b stated 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. b. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. Paragraph 14-12c, states Soldiers are subject to action per this section for commission of a serious offense. Commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Courts-Martial. c. Paragraph 15–1 (Secretarial Plenary Authority) states, separation under this chapter is the prerogative of SECARMY. Secretarial plenary separation authority is exercised sparingly and used when no other provision of this regulation applies. Separation under this chapter is limited to cases where the early separation of a Soldier is clearly in the best interest of the Army. Separations under this chapter are effective only if approved in writing by SECARMY or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis but may be used for a specific class or category of Soldiers. When used in the latter circumstance, it is announced by special HQDA directive that may, if appropriate, delegate blanket separation authority to commanders with GCMCA for the class of Soldiers concerned. 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 SPD code to be entered on the DD Form 214. a. It identifies SPD code "JKQ" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, chapter 14-12c. b. It identifies SPD code "JFF" as the appropriate code to assign enlisted Soldiers who are administratively discharged under the provisions of Army Regulation 635-200, with a narrative reason of " Secretarial Authority". c. The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers. (1) The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "3" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JKQ." (2) The SPD/RE Cross Reference Table in effect at the time of the applicant's separation established the RE code of "1" as the proper RE code to assign to enlisted Soldiers separated with the SPD code of "JFF". 3. 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 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 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. 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. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011428 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1