ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 5 November 2021 DOCKET NUMBER:  AR20210011043 
APPLICANT REQUESTS: 
a. 
His under honorable conditions (general) discharge be upgraded to an honorable discharge. 

b. 
Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 21 August 2003, by amending the following items: 

. 
Item 24 (Character of Service), from "UNDER HONORABLE CONDITIONS (GENERAL)" to "HONORABLE" 

. 
Item 25 (Separation Authority), from "AR 635-200, PARA 14-12C" to some other, unspecified authority 

. 
Item 26 (Separation Code), from "JKQ" to some other, unspecified separation code that does not denote misconduct 

. 
Item 28 (Narrative Reason for Separation), from "MISCONDUCT" to some other, unspecified narrative reason that does not denote misconduct 



c. 
The issuance of a new DD Form 214, if the Board grants an upgrade, in lieu of a DD Form 215 (Correction to DD Form 214). 


APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. 
DD Forms 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 19 September 2019 (with self-authored statement, dated 19 September 2019) and 20 November 2020 

. 
Bravo Company Alert Roster, dated 4 October 2002 

. 
Verification of Military Experience and Training (VMET), with cover sheet, dated 29 May 2003 

. 
Kurta Memorandum, 25 August 2017 

. 
Excerpt Copy of Service Records: including 18 DA Form 4856 (Developmental Counseling Forms); Separation Packet; DD Form 214; and III Corps, Policy Letter CSM 01-02, dated 8 January 2001 [70 pages] 


FACTS: 
1. 
The applicant did not file within the three-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 he believes his discharge was in error and unjust for the following reasons: 


a. 
He was counseled on 9 June 2003 that his discharge would be under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b (Pattern of Misconduct); however, he was actually discharged under the provisions of Army Regulation 635-200, paragraph 14-12c (Commission of a serious offense), which was improper. The change, whether intentional or not, made a difference in the opportunities he was given while being separated. 

b. 
Being processed under the provisions of paragraph 14-12b would have afforded him multiple opportunities for rehabilitation, a full physical, and a mental status evaluation. He assumes a less punitive action would have been more appropriate. He also assumes, had this been accomplished, he may have had a decent chance at correcting the actions leading to his discharge. Instead, he was rushed out of the service with cursory examinations and no attempts of rehabilitation. 

c. 
Being processed under the provisions of paragraph 14-12c did not require either of these actions. He would not argue that he had a pattern of misconduct; however, he takes exception to allegations he committed a serious offense. His service record contains no evidence of such an offense. This makes him suspect that his separation authority was intentionally and erroneously changed, so he would not be required to get rehabilitation. He was not counselled when this change occurred; therefore, his discharge is in error and unjust. 

d. 
When he was discharged, he was misdiagnosed as having a dysthymic disorder, due to substandard care he received. Because of this, he had to fight with the Department of Veterans Affairs (VA) to receive a correct service-connected diagnosis of Major Depressive Disorder (MDD). The VA rated his service-connected diagnosis, as MDD at 70 percent (%), on 19 April 2012. His MDD diagnosis made it clear to him that his mental health condition caused, or at least contributed to, his series of minor offenses while serving. Since his mental health condition was determined to be caused by his service, and patterns of misconduct are often associated with untreated mental health disorders, he requests "liberal consideration" as directed by the Kurta Memorandum. 

e. 
He is finally trying to get his life back together but his discharge has been a significant and undue burden. Granting his requested corrections might help him move past this dark and inconvenient period. 


3. 
The applicant underwent an initial entry examination on 25 September 1999, in preparation for enlistment in the Regular Army.  His exam showed no significant medical or mental history. The examining physician found him qualified for enlistment at the time. 

4. 
The applicant enlisted in the Regular Army on 23 August 2000. During his service, he attained the rank/grade of private first class (PFC)/E-3. 

5. 
The applicant was formally counseled by various members of his chain of command, on at least eight separate occasions, for various offenses including the following: 


• on 19 April 2001, for failing to be at the appointed place of duty at the appointed time • on 20 April 2001, for missing accountability formation on 19 April 2001, his third 
time in April 2001 • on 13 July 2001, for being late for accountability formation on 12 July 2001 • on 26 July 2001, twice, for failing to obey an order given by a noncommissioned 
officer (NCO) and for leaving formation without proper authority, on 25 July 2001 • on 12 September 2001, for sleeping while on duty and abandoning his post, on 27 August 2001, at the National Training Center (NTC) • on 18 September 2001, twice, for substandard duty performance during August 2001 and for failing to be at the appointed place of duty at the appointed time 
6. 
The applicant accepted non-judicial punishment (NJP) on 26 October 2001, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, on or about 18 September 2001. 

7. 
The applicant was formally counseled by various members of his chain of command, on at least four other occasions, for various offenses including the following: 


. on 27 December 2001, for failing to be at his appointed place of duty at the appointed time . on 3 April 2002, for violating III Corps Policy Letter CSM 01-02, paragraph 4-J, by 
having a loaded pellet gun in his barracks room . on 25 September 2002, for failing a record Army Physical Fitness Test . on 7 October 2002, for failing to obey an order given by a commissioned officer, 
on 4 October 2002 
8. 
The applicant again accepted NJP on 27 November 2002, under the provisions of Article 15 of the UCMJ, for being disrespectful in language towards an NCO, on or about on or about 12 November 2002. 

9. 
The applicant was formally counseled by various members of his chain of command, on at least six other occasions, for various offenses including the following: 


. on 3 December 2002, for his duty performance during November 2002 
. on 6 January 2003, twice, for his duty performance during December 2002 and for failing to follow instructions and disobeying a lawful order on 12 December 2002 
. on 8 January 2003, for failing his room inspection on 6 January 2003 . on 9 April 2003, for failing to obey a lawful order . on 22 April 2003, for failing to obey a lawful order and for being disrespectful to a 
senior enlisted member and NCO, on 16 April 2003 
10. 
The applicant’s commander counseled the applicant on 23 April 2003 regarding his consideration for elimination under the provisions of Army Regulation 635-200, paragraph 14-12b, for the aforementioned misconduct. He also noted the applicant was required to complete a medical and mental health evaluation as part of his separation process. He completed a memorandum for the 1st Cavalry Division Mental Health Office, requesting a separation mental health evaluation for the applicant the same day. [The mental status evaluation is not available for review.] 

11. 
The applicant consulted with counsel on 9 June 2003 and was advised of the basis for the contemplated actions to separate him under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, and its effect; of the rights available to him; and of the effect of any action taken by him to waive his rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a general discharge. He waived consideration of his case and personal appearance before an administrative separation board; and consulting counsel for no less than an under honorable conditions (general) discharge. He elected not to submit a statement in his own behalf. 

12. 
The applicant's commander officially notified the applicant on 13 June 2003, of his intent to initiate separation actions under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for his pattern of misconduct. He again explained the rights available to him and noted the applicant had already completed the required medical and mental evaluations. The commander cited the applicant's multiple failures to repair (FTR) and recommended he receive a general discharge. The applicant previously acknowledged receipt of his separation notification. 

13. 
The applicant's commander formally recommended the applicant's separation on 13 June 2003, under the provisions of Army Regulation 635-200, Chapter 14, 

paragraph 14-12b, by reason of his patterns of misconduct. He cited the aforementioned reasons for his recommendation.  He further noted, he did not consider any other disposition feasible or appropriate, because if the applicant were to remain in the service, his poor performance, disobedience to orders, or misconduct would only continue, causing him to be a disruptive influence in the unit and the U.S. Army. He again noted the required medical and mental evaluations were attached. 

14. 
The applicant's intermediate commander recommended approval of his separation on 13 June 2003, under the provisions of Army Regulation 635-200, paragraph 14-12b, for his patterns of misconduct. He also recommended a waiver of the rehabilitation requirements and a general discharge. 

15. 
The separation authority approved the applicant's separation on 13 June 2003; however, his approval changed the provisions for which the applicant was discharged under to the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his commission of a serious offense. He directed that the applicant be issued a general discharge.  The separation authority also directed that the applicant not be transferred to the Individual Ready Reserve. 

16. 
The applicant was discharged on 21 August 2003, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. The DD Form 214 he was issued confirms the following entries: 

. 
Item 24 (Character of Service) – Under Honorable Conditions (General) 

. 
Item 25 (Separation Authority) – AR 635-200, Para 14-12C 

. 
Item 26 (Separation Code) – JKQ 

. 
Item 28 (Narrative Reason for Separation) – Misconduct 



17. 
The Board should consider the applicant's statement in accordance with the published equity, injustice, and clemency determination guidance.  Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD.  The 


Veteran’s testimony alone, oral or written, may establish the existence of a condition or 
experience, that the condition or experience may have existed during or might have been aggravated by military service, and that the condition or experience may excuse or mitigate the discharge. 
18. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. 
a. 
A review of his service record indicates a mental status evaluation and separation physical were completed as part of an administrative separation packet. 

b. 
A review of the VA's Joint Legacy Viewer indicates he has received services in the VA system since November 2013. He was evaluated on 31 December 2014. He reported one suicide attempt after his military service. He reported one psychiatric hospitalization and prior therapy for Dysthymic Disorder. He was subsequently diagnosed and treated for Depressive Disorder, not otherwise specified, and MDD.  The applicant received a rating for MDD effective 19 April 2012. His rating for MDD was increased to 70% effective 28 February 2017. 

c. 
There is documentation to support a behavioral health diagnosis at the time of his discharge. There is no documentation to suggest he did not meet retention standards at the time of his discharge. MDD is not a mitigating factor for the misconduct that led to his discharge. 


BOARD DISCUSSION: 
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 MDD claim and the review and conclusions of the ARBA Medical Advisor. 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 MDD. The Board further found the evidence indicates the separation authority determined the applicant's misconduct more properly fell under the regulatory provisions for discharge due to commission of a serious offense, which is supported by the applicant's two instances of NJP. The applicant did not provide sufficient evidence of post-service achievements or reference letters to support a clemency determination by the Board. Based on a preponderance of evidence, the Board determined the character of service the applicant received upon separation and the authority and reason for discharge and associated codes shown on his DD Form 214 are not in error or unjust. 
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. 
X 
CHAIRPERSON 
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 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities for separating Soldiers from active duty and the separation codes to be entered on the DD Form 214. The separation code is an administrative code used to designate the narrative reason for separation. The SPD/RE Code Cross Reference Table included in the regulation establishes the following: 


a. 
The separation "JKQ" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of serious misconduct. The SPD/RE Code Cross Reference Table included in the regulation establishes that RE code "3" is the proper code to assign members separated with separation code "JKQ." 

b. 
The separation "JKA" is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason a pattern of misconduct. The SPD/RE Code Cross Reference Table included in the regulation establishes that RE code "3" is the proper code to assign members separated with separation code "JKA." 


3.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The version in effect at the time provided that: 
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. 

c. 
 Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. An under other than honorable conditions (UOTHC) discharge was normally considered appropriate.  However, the separation authority could direct an under honorable conditions (general) discharge if merited by the Soldier's overall record. 


4. 
 The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014 [Hagel Memorandum], to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC 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. 

5. 
 The Acting Principle Deputy Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 24 February 2016 [Carson Memorandum]. The memorandum directed the BCM/NRs to waive the statute of limitations.  Fairness and equity demand, in cases of such magnitude that a Veteran's petition receives full and fair review, even if brought outside of the time limit. Similarly, cases considered previously, either by DRBs or BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 

6. 
 The Under Secretary of Defense (Personnel and Readiness) provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum].  The memorandum directed them to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each Veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on 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. 


a. 
 Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. 

b. 
 An honorable discharge characterization does not require flawless military service.  Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. 

c. 
 Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 


7.  The Under Secretary of Defense (Personnel and Readiness) issued guidance to Service DRBs and Service BCM/NRs on 25 July 2018 [Wilkie Memorandum], 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. 


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