IN THE CASE OF: BOARD DATE: 3 January 2024 DOCKET NUMBER: AR20230007194 APPLICANT REQUESTS: upgrade of her under honorable conditions (general) discharge, and corresponding changes to her narrative reason for separation, separation code, and reentry code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 10 July 1981 * DD Form 214 for the period ending 18 September 1992 * Department of Veterans Affairs (VA) Certificate of Eligibility (COE) for Loan Guaranty Benefits * Sale Contract * VA Form 26-1880 (VA – Request of a COE) * Letter from VA * DA Form 5016 (Chronological Statement of Retirement Points) * Driver License FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 she desires the requested relief in order to be eligible to receive a VA COE for Loan Guaranty Benefits. She sold the house that she used her original COE on. Due to changes in VA policies, she no longer qualifies for a COE due the characterization of service she received when she was discharged. She has enough time in service to qualify but needs the upgraded discharge to be fully eligible. 3. The applicant's complete service record, to include a separation packet containing the specific facts and circumstances surrounding her discharge processing is not available for the Board to review. Therefore, this case is being considered based upon the available record documents and documents provided by the applicant. 4. The applicant enlisted in the U.S. Army Reserve (USAR) on 23 August 1980 in the rank/pay grade of private/E-1 for a period of 6 years. She entered active duty for the purpose of completing initial active-duty training on 10 April 1981. Upon completion of training, she was awarded military occupational specialty 75C (Personnel Management Specialist). On 10 July 1981, she was released from active duty with an honorable characterization of service and transferred to control of the USAR. She was credited with completion of 3 months and 1 day of net active service this period. 5. A DD Form 214, shows she was ordered to active duty in support of Operation Desert Shield/Desert Storm on 6 July 1992 in the rank/pay grade of sergeant/E-5. On 18 September 1992, she was involuntarily discharged from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Paragraph 14-12c(2), due to Misconduct – Abuse of Illegal Drugs with Separation Code "JKK" and Reentry Code "RE-3." Her service was characterized as Under Honorable Conditions (General). She was credited with completion of 2 months and 13 days of net active service this period. 6. The applicant provides: * A VA COE for Loan Guaranty Benefits that was issued to her on 18 May 1994 * A Sale Contract which shows she sold a house to a man with the same last name as hers on 20 June 2003 * A VA Form 26-1880 and self-authored letter, dated 10 February 2023, which show she applied for a one-time only restoration of entitlement to purchase another home * A letter from the VA Regional Loan Center, , , dated 16 February 2023, advising the applicant that qualifications for the VA loan program have changed since 1994 and she is no longer eligible due to her General discharge * A DA Form 5016 depicting the applicant's chronological history of retirement points in the USAR * Driver License 7. Army Regulation 635-200, Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. 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 UOTHC is normally appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier's overall record. 8. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for Veterans' benefits. However, 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. BOARD DISCUSSION: 1. 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 record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigating factors to overcome the misconduct. The Board noted, the applicant provided insufficient evidence of post-service achievements or character letters of support that attest to her honorable conduct that might have mitigated the discharge characterization. The Board found the applicant’s record is absent evidence of in-service mitigating factors for the misconduct that would warrant a change to the applicant’s RE-Code. 2. The Board determined under liberal consideration changes to the applicant’s narrative reason and separation code are not warranted. Furthermore, the Board noted, the applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. 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, USC, Section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b states 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). 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 appropriate for a Soldier discharged under this chapter; however, the separation authority may direct a general discharge if merited by the Soldier’s overall record. 4. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the separation codes to be entered on the DD Form 214. It states that the separation code "JKA" is an appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14, by reason of misconduct. Additionally, the SPD/ Reenlistment Eligibility (RE) Code Cross Reference Table established that RE code "4" was the proper reentry code to assign to Soldiers separated under this authority and for this reason. 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, USAR, and Army National Guard. Table 3-1 provides a list of RE codes. * RE code "1" applies to Soldiers completing their term of active service, who are considered qualified for enlistment if all other criteria are met * RE code "2" is no longer in use but applied to Soldiers separated for the convenience of the government, when reenlistment is not contemplated, who are fully qualified for enlistment/reenlistment * RE code "3" applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, whose disqualification is waivable – they are ineligible unless a waiver is granted * RE code "4" applies to Soldiers separated from last period of service with a non- waivable disqualification 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NR) 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230007194 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1