ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20170003077 APPLICANT REQUESTS: an upgrade of her characterization of service from under honorable conditions to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 an upgrade in order to further her employment growth. She claims having a general/under honorable condition hinders the level of clearance she can receive, but with an honorable she is able to receive a higher clearance level which gives her the ability to further her career, which will put her in a better-position to provide better opportunities for her children. 3. A review of the applicant’s service record shows: a. She enlisted on 1 November 2000, in the Regular Army (RA). b. She was designated absent without leave (AWOL): * for a period of 12 days from 3 November 2004 to 15 November 2004 * for one day from 23 November 2004 to 24 November 2004 * for a period of 21 days from 30 November 2004 to 20 December 2004 c. Court marital charges were preferred on 6 December 2004. Her DD Form 458 (Charge Sheet) indicates she was charged with: * five specifications of failure to be at her appointed place of duty * two specifications of AWOL * one specification of disrespect to a superior commissioned officer * two specifications of failure to obey a lawful order d. Her DD From 2329 (Record of Trial by Summary Court Martial) reflects that on 20 December 2004, the applicant was found guilty of: * five specifications of failure to be at her appointed place of duty * two specifications of AWOL * one specifications of failure to obey a lawful order e. She was sentenced to reduction to private first class (PFC)/E-3, forfeiture of $600.00 and confinement for 25 days. The sentence was approved on 4 January 2005. f. On an undisclosed date, her immediate commander notified her that action was being initiated to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), based on wrongfully disrespecting and disobeying a commissioned and noncommissioned officer. g. On 1 March 2005, the applicant acknowledged the commander’s intent to separate her under the provisions of AR 635-200, chapter 14-12c. h. Subsequent to the applicant's acknowledgement on 1 March 2005, the immediate commander formally initiated separation action against the applicant under the provisions of chapter 14 of AR 635-200, separation for misconduct, commission of a serious offense. i. She consulted with legal counsel on 2 March 2004, and was advised/counseled on the contemplated action to separate her for commission of a serious crime, under the provisions of chapter 14 of AR 635-200. She acknowledged: * she may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge * she may be ineligible for many or all benefits as a veteran under both Federal and State laws * she will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge j. The chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as general, under honorable conditions. k. Following a legal review for legal sufficiency, the separation authority approved the recommendation for separation under the provisions of chapter 14 of AR 635-200, for commission of a serious offense and ordered her service be characterized as general, under honorable conditions. l. On 18 March 2004, the applicant was discharged from active duty under the provisions of AR 635-200, Chapter 14-12c with a general under honorable conditions characterization of service. She completed 4 years, 4 months and 1 day of active duty service. Her DD Form 214 shows in: * item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): * Army Service Ribbon * National Defense Service Medal * Global War on Terrorism Service Medal * item 24 (Character of Service), Under Honorable Conditions (General) * item 26 (Separation Code), JKQ (Misconduct) * item 28 (Narrative Reason for Separation), Misconduct m. She enlisted on 4 April 2007, in to the Texas Army National Guard. 4. The applicant applied to have her discharge upgrade with the Army Discharge Review Board on 13 June 2012. The Board determined that she was properly and equitably discharged, and her request for a change in the character and/or reason of her discharge was denied in full. 5. By regulation, separations under the provisions of AR 635-200, chapter 14 provides policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. 6. In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions 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. She did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, the Board agreed that the applicant's 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. 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): Not Applicable 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 - Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to insure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. 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. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. b. 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. c. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003077 6 1