ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:    11 April 2019

	DOCKET NUMBER:  AR20160015806


APPLICANT REQUESTS:  upgrade of her general discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: she provided a DD Form 149 (Application for Correction of Military Record).

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:

     a.  She was discharged under honorable conditions.  She has worked for the State of New York as a University Police Officer since 7 July 1977.  She requested to buy back her military time from the State of New York and the State recently changed the rules.  She is only able to buy back her time if her discharge is upgraded to honorable.  The change occurred this year and she was unaware that it happened until she received a letter on 31 August 2016 stating she was ineligible to buy back her time due to the general discharge.  
  
     b.  In 2006 and 2010 she applied to buy back her time and was given the figures to buy back her time.  Unfortunately, she was financially unable to pay it off at the time.  She has only 2 years left until she retires, and would like to resolve this issue.  This is the reason why she is asking for an upgrade of her discharge.  She believes the Army has changed their requirements regarding an issue like hers.  The applicant adds that she has led an exemplary life and has been married for 25 years.  She has raised 5 children, various foster children, and is active in her church and community.  She is also an active member in the American Legion.  She asks that her request is resolved favorably.

3.  On 22 April 1974, the applicant enlisted in the Regular Army.  She held military occupational specialty 95B (Military Policeman).
4.  A review of her record revealed during the period of October 1974 to April 1975 she completed the noncommissioned officer instructional course and received multiple letters of commendation and appreciation.   

5.  On 17 December 1975, staff sergeant RLM provided a sworn statement, wherein, he stated:

* the applicant informed him of the extensive homosexual activity in the U.S. Army Military Police School
* the applicant informed him that their relationship would no longer be a normal male-female affair because she was homosexual
* the applicant brought a student to his apartment and performed sexual acts while he watched 
* the applicant told him she was sorry because she was “gay and wanted to stay that way”
* the applicant and student had been to his apartment on a previous occasion

6.  On 15 March 1976, the applicant appeared before a Board of Officers.  

7.  On 18 March 1976, the Board of Officers reached a decision and recommended the applicant be eliminated from the Army for reasons of unfitness with a general, under honorable conditions discharge.

6.  On 24 March 1976, the applicant’s defense counsel requested a suspension of her discharge.  He stated, in part:

* the applicant’s discharge should be suspended for 6 months
* the request was made to allow the applicant a probationary period to demonstrate successful rehabilitation prior to the expiration of her current term of service 
* duty performance testimony from the applicant’s chain command supports a 6 months suspension of her discharge
* based on the applicant’s entire record and her desire to remain in the Army, she will be able to show during the probationary period that she is capable of behaving properly and will perform her assigned duties efficiently 

7.  On 9 April 1976, the approval authority (Commanding General) approved the recommendation of the board and directed the applicant be discharged under the provisions of paragraph 13-5a(2) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), with a General Discharge Certificate.  

8.  On 16 April 1976, she was discharged accordingly.  The applicant completed 1 year, 11 months, and 25 days of net active service.  She did not receive a personal award.  

9.  The Board notes the applicant was not discharged based on reasons of homosexuality or homosexual acts contained in Army Regulation 635-200.        

10.  Army Regulation 635-200, paragraph 13-5a(2) states an individual is subject to separation for unfitness by reason of sexual perversion, which includes, but not limited to lewd and lascivious acts; indecent exposure; indecent acts with or assault upon a child; and other indecent acts or offenses.  

11.  Army Regulation 635-200, currently in effect, 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.   

12.  In reaching its determination, the Board should consider the applicant's petition, her service record, and her statement in light of the published Department of Defense guidance on equity, injustice, or clemency.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found that relief was warranted.  Based upon the circumstances which resulted in the applicant being discharged, the Board concluded that full relief was warranted.  

BOARD VOTE:

Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing her characterization of service as Honorable.


	 
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 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 635-200, sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5a(2) states an individual is subject to separation for unfitness by reason of sexual perversion, including but not limited to lewd and lascivious acts; indecent exposure; indecent acts with or assault upon a child; and other indecent acts or offenses.

     a.  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.

     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.

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 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)	 AR20160015806
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