ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 December 2019 DOCKET NUMBER: AR20170000225 APPLICANT REQUESTS: an upgrade of her other than honorable conditions discharge to a general under honorable conditions APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored Statement * Six Letters of Support 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 (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 provides a self-authored statement to the Board asking that her under other than honorable conditions discharge be upgrade to a general under honorable conditions discharge. She describes the events surrounding the process of her discharge (detailed letter enclosed in packet). 3. The applicant provides: a. A letter of support from X__, which states that she has known the applicant for her entire life and has maintained a very close relationship with her. She further states the applicant is a very warm hearted, honest, caring and trustworthy person. b. A letter of support from X__, which states she is very close to the applicant. They both have been in the military so the applicant confides in her about her military experience. She states the applicant is very sweet and caring but lacks the ability to trust. c. A letter of support from X__, which states she met the applicant in the mid 80’s they were in the same company. She further states when the applicant first arrived to the unit she had an outgoing personality and worked well with older Soldiers. As time went on the applicant began to change after meeting a male sergeant. She feels the applicant was forced into something that she was not. d. A letter of support from X__, stating she has known the applicant for more than 35 years. She further states she is kind, compassionate who cares for all especially the underdog. She is a great Mom who is dedicated to raising her children. e. A letter of support from X__, stating she has known the applicant since the late 80’s. She further states they were a group of girls on a mission but the applicant changed and became distant after she started hanging out with a male sergeant. f. A letter of support from X__, which states she met the applicant in 1987 and they quickly became friends. She also states after a few months she began to notice the applicant started to change mentally after meeting a male sergeant. 4. A review of the applicant’s service record shows: a. She enlisted in the U.S. Army Reserves (USAR) 18 March 1987 and later enlisted in the Regular Army (RA). b. She accepted/received non-judicial punishment (NJP) on/for: * 23 July 1987, for disobeying a lawful order, on or about 7 June 1987; her punishment consisted of reduction to PV2/E-2 * 13 November 1987, for absenting herself from her unit on or about 3 November 1987 – 6 November 1987 * 13 November 1987, for three specifications of disobeying a lawful order from a noncommissioned officer on or about 6 November 1987 * 13 November 1987, for 2 specifications of using disrespectful language towards a noncommissioned officer on or about 6 November 1987; her punishment consisted of reduction to PVT/E-1. c. Court-martial charges were preferred against her on 8 February 1988. Her DD Form 458 (Charge Sheet) indicates she was charged with 4 specifications of breaking restriction. d. On 31 March 1988, the applicant was convicted by Summary Court-Martial on 2 specifications of ‘breaking restriction. Her sentence consisted of forfeiture of three hundred dollars pay and to be confined for 10 days. e. On 14 April 1988, the sentence was approved and would be executed but the execution of that part of the sentence extending to forfeiture of pay is suspended for 6 months, at which time, unless the suspension is vacated before 30 September 1988, the suspend part of the sentence will be remitted without further action. f. The applicant was confined from 31 March 1988 through 8 April 1988. g. On 14 June 1988, the applicant was convicted by civil authorities for possession of cocaine and sentenced to 6 months. h. On 8 July 1988, the applicant’s immediate commander notified the applicant of his intent to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations Enlisted Separations), chapter 14, paragraph 14-12c before the expiration of her term of service for article 15, failure to repair, absent without leave, disobey a lawful order, repeated misconduct, convicted by summary court martial, convicted by civil authorities for possession of cocaine. Administrative Board Procedures under the provisions of AR 635-200, paragraph 2-4 were being implemented. i. On 8 July 1988, the applicant acknowledged receipt of the notification of the separation action. j. On 11 July 1988, after consulting with legal counsel she requested a conditional waiver and further acknowledged: * the rights available to her and the effect of waiving said rights * she is entitled to have her case considered by an administrative separation board because she was being considered for a separation under other than honorable conditions * statement on her own behalf are not submitted herewith * she may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued to her * she may be ineligible for many or all benefits as a veteran under both ‘Federal and State law * if a discharge/character of service is less than honorable, she may make application to the Army Discharge Review Board for upgrading * ineligible to apply for enlistment in the U.S. Army for a period of 2 years after discharge k. On 10 August 1988, the applicant’s request for conditional waiver was disapproved and her case was referred to an administrative separation board for consideration. l. On 21 October 1988, the Board convened. The Board found that the applicant did commit the following acts which constitute a pattern of misconduct: * 2 Article 15’s * A Summary Court-Martial Conviction * A Civil Conviction for possession of cocaine m. The Board recommended that the applicant be separated before the expiration of her term of service and also her discharge be characterized as Other Than Honorable Conditions. n. Consistent with the Board’s recommendations the separation approval authority approved the discharge recommendation under the provisions of AR 635-200, chapter 14. She would receive an Other Than Honorable Discharge Certificate. o. She was discharged from active duty on 2 December 1988, with an Under Other Than Honorable Conditions discharge characterization of service. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 1 year, 4 months and 18 days of net active service and 3 months and 22 days of prior active service. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within the board’s 15 year statute of limitations. 6. By regulation, members are subject to separation for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and conviction by civil authorities. 7. The Board should consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance BOARD DISCUSSION: After reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board found relief was not warranted. Based upon the short term of honorable service completed prior to a lengthy pattern of misconduct, as well as a lack of sufficient corroborating evidence to the applicant’s statement, the Board concluded that the characterization of service received at the time of separation was appropriate. 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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. b. Paragraph 3-7b (General Discharge) 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. Paragraph 3-7c (Under other than honorable conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. d. Chapter 14-12c (Commission of a Serious Offense) of that regulation provides that members are subject to separation for commission of a serious offense. Commission of a serious military or civil offense, if the specific circumstance of the offense warrant separation and a punitive discharge would be authorized for the same or a closely related offense under the Manual of Court Martial (MCM). 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 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 state principles in the guidance as well as eighteen individual factors related to an applicant. These factors include the severity of the misconduct and the length of time since the misconduct. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20170000225 3 1