IN THE CASE OF: 
 
  BOARD DATE: 12 September 2023 
 
  DOCKET NUMBER: AR20230001060 
 
 
APPLICANT REQUESTS: upgrade of his under honorable conditions, general discharge to honorable with a more favorable separation code and reentry code. 
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 293 (Application for the Review of Discharge) 

• 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.  The applicant states he feels great remorse for his active-duty actions resulting in his discharge. He was being seen by mental health at the Fort Carson post hospital. Since his discharge, he has regained self-control through counseling. He is currently a Captain of the Keshena Fire Department and has been a fire fighter for over 15 years. When he was absent without leave (AWOL) he was in the Pueblo, CO, jail. He does not have his jail discharge documents as his ex-wife destroyed them.  
 
3.  The applicant enlisted in the Regular Army on 22 July 1998 for three years. His military occupational specialty was 63S (Heavy Wheeled Vehicle Mechanic). 
 
4.  A DA Form 3822-R (Report of Mental Status Evaluation) shows he underwent a mental status evaluation on 17 January 2000. He was admitted on 13 January 2000 after a suicidal act. He thought he would be blamed for child abuse. He was diagnosed with adjustment disorder with mixed features, and had the potential for self-harm and harm to others.  
 
5.  A Memorandum for Record, dated 1 May 2000, states on 14 January 2000 the applicant was in custody at the Pueblo Police Department for suspected child abuse of his girlfriend’s baby. He was suicidal. The applicant was picked up and brought to the 
psychiatric ward at Evans Army Community Hospital. He was released three days later. He was not under guard, however there was always someone with him. The applicant stated he did not want to harm himself and was ready to face the charges in Pueblo. The applicant is an American Indian and his parents thought maybe it would help if they could find a spiritual advisor in the area. The help was found, and the applicant was dealing well and still being productive in the motor pool. A warrant was issued for his arrest. The applicant posted bond and was released. Since that time, he had been working and making his court dates. 
 
6.  The applicant was reported AWOL on 2 May 2000 and dropped from the rolls as a deserter on 1 June 2000.  
 
7.  The Provost Marshall Blotter, dated 3 May 2000, shows the offense of child abuse and aggravated assault with grievous bodily harm. 
 
8.  The AWOL Incident Report dated 3 May 2000 shows the applicant was an excellent Soldier. He had no negative counseling’s. He attempted suicide after the child he assaulted went to the hospital. He was prescribed prescription medication for depression and anxiety (Xanax). Sometime in April 2000, he was accused of assault on a female Soldier. The charges were later determined to be unfounded. There was no indication he was intending to go AWOL. 
 
9.  His DD Form 553 (Deserter/Absentee Wanted by the Armed Forces) dated 1 June 2000, shows the applicant was facing prosecution in Pueblo for child abuse. He had a history of attempted suicide and mental/emotional instability. 
 
10.  Court-martial charges were preferred against the applicant on 6 June 2000 for violation of the Uniform Code of Military Justice (UCMJ). His DD Form 458 (Charge Sheet) shows he was charged with absenting himself from his unit on or about 2 May 2000 and remained so absent in desertion. 
 
11.  The applicant surrendered to military authorities at Fort Carson, CO and was present for duty on 6 November 2001. 
 
12.  The applicant’s sentence of five years for felony-child abuse resulting in serious bodily injury (criminal negligence) was modified on 6 November 2001 to electronic monitoring. 
 
13.  On 7 November 2001, the applicant was extended 30 days to allow the unit sufficient time to process his chapter papers. He was released from miliary confinement on 6 November 2001. 
14.  The applicant was formally counseled on 8 November 2001 regarding beginning chapter proceedings under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14, for misconduct. 
 
15.  His DA Form 3822-R, dated 21 November 2001, shows he had the mental capacity to understand and participate in the proceedings, was mentally responsible, met retention requirements, there was no psychiatric disease or defect that warrants disposition through medical channels, and he was mentally responsible, able to distinguish fright form wrong and adhere to the rights. He was cleared for any administrative action deemed appropriate by command. 
 
16.  On 30 January 2002, the applicant's immediate commander notified him of his intent to initiate separation actions against him under the provisions of AR 635-200, Chapter 14-12c, for misconduct-commission of a serious offense. As the specific reasons, his commander noted his AWOL status, and abuse resulting in serious bodily injury to a child under the age of sixteen. His commander recommended he receive a general discharge. The applicant acknowledged receipt of the proposed action on the same date.  
 
17.  The applicant consulted with legal counsel on 31 January 2002 and was advised of the basis for the contemplated actions to separate him and of the rights available to him. He understood that he might expect to encounter substantial prejudice in civilian life. He acknowledged his understanding and elected to submit a statement in his own behalf however, a statement is not available for review.  
 
18.  The applicant's commander formally recommended his separation from service under the provisions of AR 635-200, Chapter 14-12c, the commander noted the applicant had not demonstrated sufficient desire to overcome his shortcomings and be a quality member of the unit. His continued presence in the unit would reduce morale, readiness, and effectiveness. The chain of command recommended approval with a general, under honorable conditions discharge. 
 
19.  The separation authority approved the recommended action and directed the issuance of a general, under honorable conditions characterization of service. 
 
20.  The applicant was discharged on 15 March 2002. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12c, with Separation Code JKQ and Reentry Code 3, for misconduct. His characterization of service was under honorable conditions (general). He completed 2 years, 1 month, and 10 days of net active service. He lost time from 27 May 2000 to 6 November 2001 and 2 May 2000 to 26 May 2000. His awards and decorations include the Army Achievement Medal. 
 
21.  In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 
 
22.  MEDICAL REVIEW: 
 
    a.  The applicant is applying to the ABCMR requesting an upgrade of his under honorable conditions, general discharge with a more favorable separation code and reentry code. He contends he had a mental health condition that mitigated his misconduct.  
    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 in the Regular Army on 22 July 1998; 2) A Memorandum for Record, dated 1 May 2000, states on 14 January 2000 the applicant was in custody for suspected child abuse, and he was suicidal. The applicant was picked up and brought to the psychiatric ward at an Army Hospital. He was released three days later. A warrant was issued for his arrest. The applicant posted bond and was released; 3) Court-martial charges were preferred against the applicant on 6 June 2000 for being AWOL from 2 May 2000 and remained so absent in desertion. The applicant surrendered to military authorities on 6 November 2001; 4) The applicant’s sentence of five years for felony-child abuse resulting in serious bodily injury (criminal negligence) was modified on 6 November 2001 to electronic monitoring; 5) The applicant was discharged on 15 March 2002, Chapter 14-12c, with Separation Code JKQ, for misconduct. His characterization of service was under honorable conditions (general). 
    c.  The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service and medical records. The VA’s Joint Legacy Viewer (JLV) was also examined. No additional medical documentation was provided. 
    d.  On his application, the applicant noted other mental health conditions were related to his request, as a contributing and mitigating factor in the circumstances that resulted in his separation. There is sufficient evidence the applicant was experiencing suicidal ideation and other mental health symptoms while on active service. He was hospitalized for three days starting on 13 January 2000, and he was seen for a Mental Status Exam (MSE) on 17 January 2000. The applicant was diagnosed with an adjustment disorder with mixed emotional features with the potential for self-harm and harm to others.  He was recommended for increased supervision and against the use of weapons. However, he was also returned to duty and found to meet medical retention standards in accordance with AR 40-501.  He was seen again for a MSE on 21 November 2001. He was found to meet retention requirements and was cleared for any administrative action deemed appropriate by command.  
    e.  A review of JLV was void of any behavioral health documentation, and the applicant receives no service-connected disability. The applicant did not provide any civilian medical documentation indicating he has been diagnosed with a mental health condition since his discharge. 
     f.  Based on the available information, it is the opinion of the Agency BH Advisor that there is insufficient evidence to support the applicant had condition or experience that mitigated his misconduct.  
Kurta Questions 
    (1)  Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes, the applicant contends he experienced a mental health condition that contributed to his misconduct. There is evidence the applicant did experience suicidal ideation and was diagnosed with an adjustment disorder while on active service. 
    (2)  Did the condition exist or experience occur during military service?  Yes, the applicant contends he experienced a mental health condition that contributed to his misconduct. There is evidence the applicant did experience suicidal ideation and was diagnosed with an adjustment disorder while on active service. 
    (3)  Does the condition experience actually excuse or mitigate the discharge? No, there is sufficient evidence the applicant was diagnosed with a mental health condition and was reported experiencing suicidal ideation while on active service. The applicant was found AWOL, which can be a natural sequalae to an adjustment disorder. However, the applicant was also found guilty of child abuse, and there is no nexus between this misconduct and the applicant’s diagnosis of an adjustment disorder and reported suicidal ideation given that: 1) this misconduct is not part of the natural history or sequelae of the applicant’s adjustment disorder/suicidal ideation; 2) an adjustment disorder/suicidal ideation does not affect one’s ability to distinguish right from wrong and act in accordance with the right. However, the applicant contends his mental health condition resulted in his misconduct, and per the Liberal Consideration Policy, his contention is sufficient for consideration. 
 
BOARD DISCUSSION: 
 
After reviewing the application and all supporting documents, 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 from active duty due to Misconduct, Commission of a Serious Offense with a general discharge. 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 insufficient evidence of in-service mitigating factors to overcome the misconduct. The applicant provided insufficient persuasive 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. 
 
 b.  The applicant was separated under chapter 14-12c of AR 635-200 due to misconduct – commission of a serious offense. By regulation, the Separation Code JKQ is the appropriate code to assign to enlisted Soldiers separating under chapter 14-12c due to misconduct – serious offense. Additionally, at the time of the applicant’s discharge, Separation Code JKQ had a corresponding RE Code of 3. The Board found no error or injustice.  
 
BOARD VOTE: 
 
Mbr 1 Mbr 2 Mbr 3 
 
: : : GRANT FULL RELIEF 
 
: : : GRANT PARTIAL RELIEF 
 
: : : GRANT FORMAL HEARING 
 
xx: xx: xx: 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. 
 
  9/12/2023

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.  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 (AR) 635-200 (personnel Separations) sets forth the basic authority for the separation of enlisted personnel. 
 
 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.  Chapter 14 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 
 
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 enlisted Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, due to misconduct (serious offense). The SPD/RE Code Cross Reference Table, in effect at the time, stipulated that an RE-3 code would be assigned to members separated under these provisions with an SPD code of JKQ. 
 
5.  AR 601-210 (Active and Reserve Components Enlistment Program), covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  Table 3-1 included a list of the Regular Army RE codes: 
 
• An RE-1 applies to Soldiers completing their term of active service who are considered qualified to reenter the U.S. Army; they are qualified for enlistment if all other criteria are met 

• An RE-3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable; they are ineligible for enlistment unless a waiver is granted 

• An RE-4 applies to Soldiers who are separated from their last period of service with a non-waivable disqualification; they are ineligible for enlistment 


 
6.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Boards for Correction of Military/Naval Records (BCM/NR) to carefully consider the revised post-traumatic stress disorder (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; 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. 
 
8.  The Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs on 25 July 2018, 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 court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.   
 
 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, Boards 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//