ARMY BOARD FOR CORRECTIONS OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 April 2019 DOCKET NUMBER: AR20170000341 APPLICANT REQUESTS: Reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20080003907 on 29 July 2008. Specifically, she requests her under honorable conditions (general) discharge be upgraded to an honorable discharge. As a new issue, she requests her records be expunged and her "codes" [interpreted to mean her separation code and narrative reason for separation] be changed to some other, unspecified and presumably more favorable separation code and narrative reason for separation. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Electronic DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) with self-authored statement, dated 20 September 2016 * DD Form 214 (Certificate of Release of Discharge from Active Duty), for the period ending 23 January 2002 * Church of God in Christ, Inc., Evangelist License, issued 26 March 2006 * U.S. Army Wounded Warrior (AW2) Program Certificate of Training, for the period 28 April through 2 May 2014 * Recovery Care Coordinator Training Certificate of Completion, for the period 5 May though 9 May 2014 * Grand Canyon University, transcript for Masters of Education in Secondary Education, issued on 23 June 2015 * Trident University International, transcript for Doctor of Philosophy in Educational Leadership, issued on 12 July 2016 FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080003907 on 29 July 2008. 2. As a new argument, the applicant states: a. She had continuous honorable active service from 19 March 1992 thru 02 May 2000; she reenlisted on three occasions and served without any problems, without instances of nonjudicial punishment or any other disciplinary actions until her last year of service at Ft. Campbell, KY, which is duly noted as a "minor disciplinary infraction." Her military service was excellent up to that point. However, her total time in service has been characterized based on a single incident that occurred almost 15 years ago. b. Since that time, she has received a PhD in K-12 Educational Leadership and has already submitted her dissertation to the Internal Review Board (IRB) for approval. She has fully recovered from the aforementioned military incident at Ft. Campbell but has also moved forward in life to become a tremendous leader and advocate for children's rights and education, as well as an advocate for the nation's most severely wounded, injured and ill veterans of our great country. She is also a certified English teacher holding a Master's Degree in Secondary Education and a Bachelor's Degree in English – both of which she has received with high academic honors. c. Nevertheless, it is extremely difficult to advance in Federal government jobs and the college sector with the stigma associated with her military record. It continues to surface when she applies for jobs, especially for a security clearance. This has resulted in her being not selected for employment on many occasions. She is trying to advance in life without being punished for the remainder of her life for the one "minor disciplinary infraction" nearly 15 years ago. d. Please grant her request for full expungement, discharge upgrade, and separation code upgrades that will allow her to continue the outstanding service and leadership she has continuously displayed since her discharge. She and her family have suffered for so long, this is her third request to the Board since being discharged. 3. Following prior service in the Army National Guard, the applicant enlisted in the Regular Army on 1 October 1992. She served through several extensions and reenlistments and attained the rank/grade of sergeant (SGT)/E-5. 4. Special court-martial charges were preferred against the applicant on 4 October 2001. The DD Form 458 (Charge Sheet) shows she was charged with the following violations of the Uniform Code of Military Justice (UCMJ): a. Charge I – a single specification of violating Article 81 of the UCMJ; specifically, conspiring to make a false statement in order to commit conspiracy, on or about 1 March 2001. b. Charge II – a single specification of violating Article 92 of the UCMJ; specifically, being derelict in the performance of her duties by willfully failing to report a fraudulent DA Form 705 (APFT card) placed in her promotion packet, on or about 23 March 2001. c. Charge III – a single specification of violating Article 107 of the UCMJ; specifically, making an official false statement with the intent to deceive, on or about 13 April 2001. d. Charge IV – a single specification of violating Article 107 of the UCMJ; specifically, making an official false statement to the Chief of Promotion Branch with the intent to deceive, on or about 6 June 2000. e. Charge V – a single specification of violating Article 134 of the UCMJ; specifically, wrongfully soliciting another Soldier to make an official false statement on an APFT card, on or about 1 March 2001. 5. Before a special court-martial on 7 December 2001, the applicant was convicted of three counts (Charges I, III, and V), one count was dismissed as part of an acceptance plea and one count was dismissed by the government prior to the acceptance of the plea. Her sentence included her reduction to the rank/grade of private first class (PFC)/E-3. 6. The applicant was counseled on 10 December 2001 of her commander's intent to initiate separation actions against her under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c (Commission of a Serious Offense), by reason of her court-martial conviction for misconduct, conspiracy to commit fraud and making a false statement. 7. The applicant was officially notified on 7 January 2002 of her commander's intent to initiate separation actions against her under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of her court-martial conviction for misconduct, conspiracy to commit fraud and making a false statement. She acknowledged receipt of the proposed separation notification on the same day. 8. The applicant's commander formally recommended her separation from service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of her misconduct – commission of a serious offense on 7 January 2002. 9. The applicant waived her right to consult with counsel on 9 January 2002. She acknowledged she was advised of the basis for the contemplated actions to separate her under the provisions of Army Regulation 635-200, paragraph 14-12c and its effect; of the rights available to her; and of the effect of any action taken by her to waive her rights. She acknowledged she may encounter substantial prejudice in civilian life if she received a general discharge. She further waived her right to appear before and have her case heard by an administrative separation board, and she decline to submit a statement in her behalf. 10. Consistent with the chain of command recommendations, the separation authority approved the applicant's discharge on 9 January 2002, by reason of commission of a serious offense, and directed that her service be characterized as general, under honorable conditions. 11. The applicant was discharged on 23 January 2002, under the provisions of Army Regulation 635-200, paragraph 14-12c, and her service was characterized as under honorable conditions (general). Her DD Form 214 further shows in: a. Item 12 (Record of Service), the entries: * 12a (Date entered AD [Active Duty] This Period) – 19 March 1992 * 12c ( Net Active Service This Period) – 9 years, 10 months, and 5 days of creditable service * 12d (Total Prior Active Service) – 6 months, and 15 days of creditable service * 12e (Total Prior Inactive Service) – 3 years, 8 months, and 1 day of service of creditable service * 12f (Foreign Service) – 7 years, and 4 months of creditable service b. Item 18 (Remarks), the entries: * CONTINOUS HONORABLE ACTIVE SERVICE: 19921001-19961208 * IMMEDIATE REENLISTMENTS THIS PERIOD—19921001-19960714, 19960715-19961208, 19961209-20000520 * MEMBER HAS COMPLETED FIRST FULL TERM OF SERVICE c. Item 26 (Separation Code), the entry "JKQ" d. Item 28 (Narrative Reason for Separation), the entry "MISCONDUCT" 12. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her under honorable conditions (general) discharge; however, after careful consideration, the ADRB denied her request on 19 January 2007. 13. The applicant applied to the ABCMR on 13 May 2001, for an upgrade of her under honorable conditions (general) discharge; however, after careful consideration, the Board denied her request on 9 July 2008. 14. The applicant provides the following for consideration: * a personal statement, dated 20 September 2016, reiterating the details in her application * AW2 Program Certificate of Training, for the period 28 April through 2 May 2014, showing she completed training to provide personalized life plans for our Soldiers and their Families, enabling them to make informed and relevant decisions and to become self-sufficient, contributing members of our communities * Recovery Care Coordinator Training Certificate of Completion, for the period 5 May though 9 May 2014, showing she completed the course * Grand Canyon University, transcript for Masters of Education in Secondary Education, issued on 23 June 2015 * Trident University International, transcript for Doctor of Philosophy in Educational Leadership, issued on 12 July 2016 * Church of God in Christ, Inc., Evangelist License 15. In reaching its determination, the Board should consider the provided statement, 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 determined that relief was warranted. Based upon the lengthy honorable service which occurred prior to the misconduct, the demonstrated growth of the applicant since the misconduct which resulted in the discharge and the passage of time, the Board concluded that granting clemency by upgrading the characterization of service to Honorable was appropriate. BOARD VOTE Member 1 Member 2 Member 3 X X X Full Grant : : : Partial Grant : : : Formal Hearing Grant : : : Deny 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: * Characterization of service: “Honorable” * Narrative Reason for Separation: “Secretarial Authority” * Separation Code: “JFF” * Reentry (RE) Code: “1” 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, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) prescribes policies governing the AMHRR Management Program; specifically, it prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Official Military Personnel File (OMPF). Appendix B (Documents Authorized for Filing in the AMHRR [OMPF] and/or Interactive Personnel Electronic Records Management System (iPERMS)) is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or iPERMS. According to Table B-1 (Authorized Documents): a. Court-martial orders will be filed in the "Performance" folder of an individual’s OMPF when there is an approved finding of guilty on at least one specification. b. If all approved findings are not guilty, the order is filed in the "Restricted" folder. c. If all charges and specifications are later dismissed, or if all findings of guilty are reversed in a supplemental order, all related orders will then be removed from the "Performance" folder and transferred to the "Restricted" folder. 3. Army Regulation 635-5-1 (Separation Program Designator (SPC) Codes) prescribes the specific authorities (regulatory, statutory, or other directives) and reasons for the separation of members from active military service and the separation code to be used for these stated reasons. This regulation provides that the separation code "JKQ," as shown on the applicant’s DD Form 214, specifies the narrative reason for discharge as "Misconduct-Commission of a Serious Offense" and that the authority for discharge under this separation code is Army Regulation 635-200, paragraph 14-12c. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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. Paragraph 3-7b provides that 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 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline). Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. ABCMR Record of Proceedings (cont) AR20170000341 3