ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  8 February 2019  

	DOCKET NUMBER:  AR20160015176


APPLICANT REQUESTS:   The applicant requests her under other than honorable conditions (UOTHC) discharge be upgraded.

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 three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 believes her record to be in error or unjust because she was not court-martialed or fully investigated.

3.  On 13 October 1998, the applicant enlisted in the Regular Army.  A review of her record does not reveal she was mobilized, deployed or served in a theater of operations. 

4.  On 5 December 2000, the applicant was charged for wrongfully possessing approximately 59 grams of marijuana, a controlled substance, with the intent to distribute the said controlled substance.

5.  On 3 January 2001, the applicant voluntarily requested discharge for the good of service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  She consulted with legal counsel and was advised of the basis for the trial by court-martial, her available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10.  She signed a request for discharge for the Good of the Service and provided a self-authored statement of support in her own behalf; she states, in pertinent part: 

     a.  Reflecting to the beginning of her career, she can show she has been an outstanding Soldier.  She doesn't want to come off as bragging, but her records from basic training show the great and excellent things she accomplished.  She was previously assigned to a unit in Korea and with help from the first sergeant and five other females, they made her unit a well-financed, fun loving family.  She chose to return to Fort Lee; it was rough and she did do some wrong and paid for her mistakes; however, she felt like she was being treated unfairly and attempted to resolve things through her command channels.  She had hoped to finish her time or reenlist, but understood what must be done.    

     b.  The applicant admits she made a mistake, hoped forgiveness could be said for her actions, and the military would remember the great things she did over her career.

6.  The appropriate authority approved the applicant’s request for the good of the service, directing the applicant be reduced to the lowest grade possible and that her service be characterized as UOTHC. 

7.  On 16 March 2001, the applicant was discharged accordingly.  Her DD Form 214 shows she completed 1 year and 11 months of total active service, and is authorized the Army Achievement Medal, the Army Service Ribbon, and the Overseas Service Ribbon.

8.  Army Regulation 635-200 states a UOTHC when separated under Chapter 10 is authorized.  A member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service she has been awarded a personal decoration or if warranted by the particular circumstances of a specific case.

      a.  The applicant’s separation packet provides a statement she submitted on her own behalf where she states prior to getting in trouble she was a good Soldier. She started having issues when she was reassigned and attempted to resolve through command channels with no avail.  She had hoped to finish her time or reenlist but understood what must be done.    

      b.  Her record shows she was charged for wrongful possession of marijuana with the intent to distribute and voluntarily requested a Chapter 10 in-lieu of a trial by court-martial. 

9.  In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published DOD guidance on equity, injustice, or clemency.




BOARD DISCUSSION:

1.  The Board considered the applicant’s request with all supporting documents, evidence in the service record and applicable policies and guidance.  The Board considered how she believes her record to be in error or unjust because she was not court-martialed or fully investigated.  The board finds the applicant's discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority, and the applicant was provided full administrative due process.  The Board finds her separation was both proper and equitable.

2. The Board considered the applicant’s statement of her good performance while in Korea before her time at Fort Lee where she made mistakes and tried to work things through her command channels without avail.  On 5 December 2000, the applicant was charged for wrongfully possessing approximately 59 grams of marijuana, a controlled substance, with the intent to distribute.  Her misconduct affected others and undermined the entire team, not just herself.  The applicant completed 1 year and 11 months of total active service, and is authorized the Army Achievement Medal, the Army Service Ribbon, and the Overseas Service Ribbon.  

3.  Consequently, even when applying liberal consideration standards, evidence shows no error or injustice exists to the applicant’s military records.  Evidence does not indicate that the applicant’s duty performance and behavior generally met the standards of acceptable conduct and duty performance as described in AR 635-200.  Consequently, the applicant has not demonstrated by a preponderance of evidence that an upgrade to her discharge is warranted. 

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.


ADMINISTRATIVE NOTE(S):

Not Applicable



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 Army Board for Correction of Military Records (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 600-200 (Enlisted Personnel Management System), in effect at the time, stated when the general court-martial authority determined that a Soldier was to be discharged from the service under other than honorable conditions she was reduced to the lowest enlisted grade.  Board action was not required for this reduction.

3.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

   a.  Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

    b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

    c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

    d.  An UOTHC is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct.  In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service she has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 

4.  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 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.

ABCMR Record of Proceedings (cont)	 AR20160015176
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