ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170002513 APPLICANT REQUESTS: an upgrade of her other than honorable conditions discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Statements of Support (5) * Juris Doctor Diploma * State of California Bar Certificate * Los Angeles County Attorney Performance Evaluation * Index of Documents * DD From 214 (Report of Separation 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 is requesting her discharge be upgraded to an honorable, because at the time of her discharge, she was pregnant and living alone, when she was detained by local law enforcement and was afraid. She does not remember what she said to the detectives. Once she consulted with a Judge Advocate General (JAG) attorney, she was advised that it was in her best interest to exit the service. She states, she was never advised of the negative consequences, and encouraged to agree to separation. During her life, she realized the consequences of her discharge. She and her family are pillars of their community. In her lifetime she has worked as a public defender for 25 years, and received a liver transplant, and now she is nearing retirement and wishes to go out with some dignity. 3. The applicant provides: * Statements of Support (5), which state the applicant is admired, well respected and an inspiration to all; she is a compassionate, reliable, caring, and competent person, who ensured the clients she represented received a fair hearing * Juris Doctor Diploma, dated 2 June 1990 * California State Bar Certificate, dated 4 December 1990 * Los Angeles County Public Defender Attorney Performance Evaluation, dated 23 November 2015, which states the applicant received exemplary ratings during the rating period * Index of Documents submitted to the Board 4. A review of the applicant’s service record shows: a. She enlisted on 30 December 1976, in to the Regular Army. b. She received a letter of reprimand for failing to report to her place of duty on 9 July 1977. c. Court marital charges were preferred on 14 November 1978. Her DD Form 458 (Charge Sheet) indicates she was charged with three specifications of fraud, and one specification of theft. d. She consulted with legal counsel on 2 January 1979 and subsequently requested discharge for the good of the service, in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (AR) (Personnel Separations – Enlisted Personnel), chapter 10. She acknowledged: * if her request was accepted, she may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * if approved, she may be deprived of many or all Army benefits * she may be ineligible for many or all benefits administered by the Veterans Administration, and that she may be deprived of her rights and benefits as a Veteran under both Federal and State law * she may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge e. Consistent with the chain of command's recommendation, on 8 January 1979 the separation authority approved the applicant’s request for discharge for the good of the service, in lieu of trial by court-martial, and approved an under other than honorable conditions discharge. She would be reduced to the lowest enlisted pay grade. f. On 5 February 1979, she was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an under other than honorable conditions characterization of service. She completed 2 years, 1 month and 6 days of active service. She was authorized or awarded a Marksman Marksmanship Badge with Rifle Bar. 5. The applicant applied to the Army Discharge Review Board on 23 March 1979, and her request was denied. She applied again on 16 September 1985, and the action was closed without action due the applicant’s failure to respond to a notification letter for a personal appearance. 6. By regulation, an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An under other than honorable conditions discharge will normally be furnished an individual who is discharged for the good of the service. 7. In reaching its determination, the Board can consider the applicant’s petition and her 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 determined that partial relief was warranted. Although the Board found the offenses that resulted in the discharge very serious misconduct, based upon the demonstrated growth of the applicant from those events resulting in discharge, the Board concluded that granting clemency by upgrading the characterization of service of the applicant to Under Honorable Conditions (Genreral) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X 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 Under Honorable Conditions (General). 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 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-9d (Honorable Discharge) states an honorable discharge is a separation with honor. Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age length of service, grade and general aptitude. b. Paragraph 1-9e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge. When a member’s service is characterized as general, except when discharge by reason of misconduct, unfitness, and unsuitability. c. Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 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. 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 based on 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. 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. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.. ABCMR Record of Proceedings (cont) AR20170002513 4 1