ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 19 April 2019 DOCKET NUMBER: AR20160018977 APPLICANT REQUESTS: The applicant requests an upgrade of her under other than honorable conditions (UOTHC) discharge to an honorable discharge and to restore her rank/grade to sergeant (SGT)/E-5. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Affidavit * Exhibit A, DD Form 214 * Exhibit B, Honorable Discharge Certificate from the U.S. Army, dated 2 January 1986 * Exhibit C, DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 3 January 1986 * Exhibit D, DA Form 1059 (Service School Academic Evaluation Report), dated 3 December 1986 for period 22 October 1986 thru 21 November 1986 * Exhibit E, DA Form 1059, dated 14 October 1988 for period 12 September 1988 thru 14 October 1988 * Exhibit F, DA Form 2166-7 (Noncommissioned Officer Evaluation (NCO) Report), dated 1 June 1989 for period June 1988 thru May 1989 * Exhibit G, DD Form 4, date of enlistment 4 April 1989 * Exhibits H-M, 6 Letters of Character References * Exhibit N, Depart of Veterans Affairs (VA) Decision Letter to Applicant 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 submits a DD Form 149 and a 6-page self-authored affidavit. She states or explains: a. The VA made the determination that the incidents that resulted in her receiving an UOTHC discharge were isolated incidents and were not acts of willful misconduct. The VA determined her service was honorable for purposes of eligibility for benefits. As evidenced by the applicant’s statement and documents enclosed herewith, a comprehensive examination of her service from 5 January 1983 through 10 April 1991, demonstrates that she had a successful military career. b. She entered active duty on 5 January 1983 and was discharged on 10 April 1991 with an under other than honorable conditions discharge (Exhibit A - DD Form 214,). She provides detailed explanations for the circumstances which led to her receiving three Article 15’s, UCMJ (Uniform Code of Military Justice) and eventually her being discharged with a UOTHC. Her third Article 15, was the result of her use of methamphetamine. At this time she was struggling to meet the Army’s height and weight standards. Regretfully, she used methamphetamine as an appetite suppressant, in an effort to control her weight. She obtained the methamphetamine from a fellow Soldier and only used the illegal drug one time. She regret her poor decision to use methamphetamine. She had never used methamphetamine prior to this incident, and have never used it since that time. This was a one-time mistake, albeit a terrible one. Prior to the aforementioned incidents, her service was exemplary. c. Her military occupational specialty (MOS) was 71M (Chaplain's Assistant). On 2 January 1986, she completed her first enlistment period and she was given an honorable discharge (Exhibit B - Honorable Discharge Certificate). She greatly enjoyed her first enlistment period and decided to continue her Army career, so she decided to reenlist (Exhibit C – Enlistment/Reenlistment Document with Oath of Reenlistment). She successfully completed the Primary Leadership Development Course (PLDC) (Exhibit D - Service School Academic Evaluation Report). Thereafter, she attained the rank of sergeant (SGT), and in 1988, she successfully completed the 71M Senior Chaplain Assistant Basic Noncommissioned Officer Course (Exhibit E - Service School Academic Evaluation Report). Her senior rater rated her overall performance as "successful", and her overall potential for promotion and/or service as "superior" (Exhibit F – NCOER for the period of June 1988 through May 1989). In April of 1989, she reenlisted again (Exhibit G – Enlistment/Reenlistment Document). She enclosed a letter from M_ A_ (Exhibit H), a Soldier who she supervised during her time at Camp Zama, Japan. d. After being discharged from the Army, she moved back to her hometown of Buffalo, NY, and took up residence with her mother. She became involved with a church, focused on raising her three children, and eventually obtained employment with the Board of Education as a bus aide. In 2011, her daughter, T_ G_, an active duty Soldier, asked her to move from Buffalo to Copperas Cove, to help her with her children. She became a member of the church where she volunteers as an usher, help clean the church, and help cook for banquets, dinners, and other church events. She also volunteers when the church does outreach events to help the local homeless community by proving them with coats, clothing, and blankets. She enclosed additional character letters as Exhibits I-M. e. The actions that led to her discharge from the Army, although regrettable, are not indicative of the type of Soldier she was throughout most of her Army career, or the life that she has led for the past twenty-five years since her discharge. Before the poor decisions that derailed her career, she had hoped to stay in the Army until retirement. The loss of her career devastated her, and even now it is very difficult when she is reminded of this period of her life. Although she cannot change the past, she has worked very hard to have a good life. As previously stated, she only used methamphetamine one time, which led to the Article 15. She has not used methamphetamine at all, and have not engaged in any criminal activity of any sort since being separated from the Army. She submitted a claim for VA compensation benefits for back pain resulting from her service in the military. After reviewing her records, the VA decided to characterize her service as honorable for purposes of eligibility for VA benefits (Exhibit N) 3. On 5 January 1983, at the age of 30 years old, the applicant enlisted in the Regular Army for a term of 3 years. Subsequent to her enlistment, on: * 2 January 1986, she was honorably discharged for immediate reenlistment * 3 January 1986, she reenlisted for a term of 4 years * 30 September 1986, she extended for 3 months to meet service remaining requirement for overseas levy * 3 April 1989, she was honorably discharged for immediate reenlistment * 4 April 1989, she reenlisted for a term of 4 years 4. A review of her record shows: a. A memorandum for record from the Tripler Army Medical Center, Forensic Toxicology Drug Testing Laboratory, HI, subject: Mandatory Medical Review Officer (MRO) Evaluation of Amphetamine/Methamphetamine Positive Results, dated 6 October 1989. It stated that the information is based upon guidance in Headquarters, Department of the Army Message R281205, July 1989. It indicated that a positive amphetamine result may be caused by legitimate, legal use of amphetamines; therefore, commanders must take certain steps before proceeding with administrative or UCMJ Action. b. Six General Counseling Forms regarding her conduct in performance from a period of 6 June 1990 to 11 January 1991 for reasons to include failing to pay Deferred Payment Plan, missing formations, and missing training. 5. She accepted nonjudicial punishment on: * 8 November 1990 for wrongfully appropriating $4,640.00 in U.S. Currency, property of the U.S. Government; punishment was suspended but was vacated on 11 January 1991 for failing to go at the time prescribed to her appointed place of duty, reducing her to specialist (SPC)/E-4 * 12 February 1991 for being absent without leave (AWOL) from on or about 0730 hours, 10 January 1991 to on or about 1130 hours, 1 January 1991 and for failing to go at the time prescribed at her appointed place of duty, reducing her to private first class (PFC)/E-3 * 21 February 1991, for wrongfully using amphetamine and methamphetamine, reducing her to private one (PV1)/E-1 6. On 22 February 1991, the applicant’s immediate commander notified the applicant that he was initiating separation actions against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12c, commission of a serious offense. 7. The applicant acknowledged she had been notified of the pending separation action against her and she had been advised of the basis for the contemplated action, understood her rights, waived personal appearance before a board, waived consulting with counsel, and elected to submit a statement in her own behalf. She stated: a. She was writing this statement to express the unfairness for recommending an other than honorable conditions discharge, proposed by her commander. She did not feel it was justified because the commander’s limited time for evaluation of her character as a Soldier or as a person was based only on her most recent misconduct. Once being a careerist, her prior records, character, and had been a quality Soldier in the past, were not judged entirely as a whole. b. She found that injustice and discrimination had been done, as far as her situation was concerned. She asked, how can the commander allow a Caucasian male senior NCO to continue to work in his MOS, live in quarters, and maintain his creditability among his peers, when he should be under pre-trial confinement for the safety of the community for the crime of incest? Yet, her, a former junior NCO, Black, female, must be forced from her MOS, lie in the barracks, be monitored and escorted everywhere, labeled, and appear to be a misfit among her peers, for misconduct. c. She implored that the recommendation for a UOTHC not be recognized. She asked, why her career, after the Army, should be ruined because she could no longer participate with unauthorized and unorthodox procedures on the command. 8. The chain of command recommended approval of the recommendation for separation and on 4 April 1991, the appropriate commander approved the recommendation for separation, directing the applicant be issued an UOTHC. 9. On 10 April 1991, the applicant was discharged accordingly. Her service was characterized as UOTHC. She completed 8 years, 3 months, and 6 days of net active service this period with 4 years and 14 days of Foreign Service. Her DD Form 214, shows: * Her rank as PV1 and her effective date of rank as 21 February 1991 * She was awarded or authorized: * Army Achievement Medal * Army Service Ribbon * Overseas Service Ribbon * M-16 Rifle Expert Marksmanship Qualification Badge * Hand Grenade Expert Marksmanship Qualification Badge * Noncommissioned Officer Professional Development Ribbon (2nd Award) * Army Lapel Button * "Soldier separated on temporary records and Soldier’s affidavit. A DD Form 215 [Correction to DD Form 214 (Certificate of Release or Discharge from Active Duty)] will be issued to provide any missing information or to correct any information//Nothing Follows" (unavailable for review) 10. The applicant provides: a. Exhibit A, DD Form 214 shows on 10 April 1991, she was discharged with an UOTHC discharge. b. Exhibit B, Honorable Discharge Certificate shows she completed her first enlistment period with an honorable discharge. c. Exhibit C, DD Form 4, dated 3 January 1986, shows she did reenlist. d. Exhibit D, DA Form 1059, dated 3 December 1986, shows she successfully completed PLDC. e. Exhibit E, DA Form 1059, dated 14 October 1988, shows she successfully completed the 71M Senior Chaplain Assistant BNCOC. f. Exhibit F, DA Form 2166-7, dated 1 June 1989, shows her senior rater rated her overall performance as "successful" and her overall potential for promotion and/or service as "superior." g. Exhibit G, DD Form 4, dated 4 April 1989 shows she reenlisted for a second time. h. Exhibits H-M, 6 character references attesting to the applicant’s character and accomplishments while she served in the military and during her post-service period. These references include but are not limited to her character as a mentor of a fellow Soldier while serving in an overseas assignment and a member of the church, a member of the community, doting sister, and as a role model. i. Exhibit N, VA Decision Letter to Applicant shows VA characterize her service as honorable for purposes of eligibility for VA benefits. 11. The applicant states the VA made the determination that the incidents that resulted in her receiving an UOTHC discharge were isolated incidents and were not acts of willful misconduct and determined her service was honorable for purposes of eligibility for benefits. Prior to the incident that led to her discharge (i.e., use of amphetamine and methamphetamine) her service was exemplary. Her record shows she accepted NJP on three occasions, one was for wrongfully using amphetamine and methamphetamine, and received six counseling statements regarding her conduct and performance. 12. AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, states for item 24 (Character of Service) lists the authorized entries for the types or character of service. 13. AR 635-200, Chapter 14, paragraph 14-12c, in effect at the time, was a separation commission of a serious offense. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. 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 he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 14. AR 635-200 (Active Duty Enlisted Administrative Discharge), currently in effect, states both honorable and general discharges entitle a Soldier to full Federal rights and benefits provided by law. Discharges under other than honorable conditions may or may not deprive the Soldier of veterans’ benefits administered by the VA; a determination by that agency is required in each case. 15. In reaching its determination, the Board can consider the applicant's petition and his service record in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions and letters of support were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The applicant’s VA service characterization is based upon VA’s standards of determining qualifications for benefits and does not affect the service characterization provided by the military branch. She did not provide evidence of post- service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's reduction in rank and discharge characterization was warranted as a result of the misconduct. 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. 6/20/2019 x CHAIRPERSON Signed by: 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): A review of the applicant’s record shows her DD Form 214 (Certificate of Release or Discharge from Active Duty), for period ending 10 April 1991, is missing important entries that affect her eligibility for post-service benefits. As a result, amend the DD Form 214 by adding: * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized): Army Good Conduct Medal (2nd Award) and National Defense Service Medal * item 14 (Military Education): Basic Noncommissioned Officer Course, 4WKS, (Oct 1988) and Champlain Assistant Course, 6WKS, (May 1983) * item 18 (Remarks): * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 830105 UNTIL 890403 * "IMMEDIATE REENLISTMENTS THIS PERIOD: 830105 – 860102 860103 - 890403" 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 (AR) 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for preparing and distributing DD Form 214. For item 24 (Character of Service) it lists the authorized entries for the types or character of service.. 3. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 14 of the regulation dealt with separation for various types of misconduct. Paragraph 14-12c provided for the separation of a Soldier due to commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related- offense under the Manual for Court-Martial. An absentee returned to military control from a status of AWOL or desertion may be separated for commission of a serious offense. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. 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 he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 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 member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Upon determination that a member is to be separated with a discharge certificate under other than honorable conditions the separation authority will direct reduction to the lowest enlisted grade by the reduction authority. 4. AR 635-200 (Active Duty Enlisted Administrative Discharge), currently in effect, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Readiness is promoted by maintaining high standards of conduct and performance. It states the characterization of service will be determined solely by the military record during the current enlistment or period of service, plus any extension thereof, from which the Soldier is being separated. Both honorable and general discharges entitle a Soldier to full Federal rights and benefits provided by law. Discharge under other than honorable conditions may or may not deprive the Soldier of veterans’ benefits administered by the Department of Veterans Affairs; a determination by that agency is required in each case. 5. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. //NOTHING FOLLOWS//