ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170003743


APPLICANT REQUESTS:  an upgrade of her general discharge to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* two college transcripts and nursing validation

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 states she entered the U. S. Army full of ignorance and lacking any form of education of its value.  She acted out as an angry and bitter child because that was the only coping mechanism she inherited; to respond with anger and defense.  She was ignorant to the opportunities and life lessons that the U.S. military provides.  She has grown tremendously since then.  She is an alumni of Ivy Tech Community College and Brown Mackie College.  She works hard daily with integrity and proudly presenting herself as a veteran of the U.S. Army.  She volunteers and actively works with non-profit organizations to better the country.  Innovation is only succeeded with discipline.  She would like her growth to be recognized and her ignorance provided another chance.

3.  The applicant provides: 

* Ivy Tech Community College Transcript of Academic Record, dated 16 June 2016, showing she was an undergraduate with a major in general studies 
* Brown Mackie College, dated 27 July 2016, showing she was awarded a Practical Nursing Diploma on 28 June 2014
* Online Validation Results showing validation of her license as a Licensed Practical Nurse on 22 February 2017

4.  Review of the applicant’s military record shows:

	a.  She enlisted in the Regular Army on 30 March 2006, in pay grade E-3.  She was reduced to pay grade E-2 on 17 July 2006 (reason unknown).

	b.  She received counseling on/for:

* 28 November 2006 – disobeying a no contact order
* 16 December 2006 – being disrespectful to a noncommissioned officer (NCO), misconduct, and separation for the Army for misconduct
* 4 January 2007 – failing to obey orders, being insubordinate toward an NCO, simple assault – consummated by a battery, and being disrespectful to a commissioned officer

	c.  On 26 February 2007, she accepted nonjudicial punishment (NJP) for unlawfully striking a Solider on the face with an open hand, being disrespectful toward her NCO, willfully disobeying a lawful order from her superior commissioned officer, and behaving with disrespect toward her superior commissioned officer on or about 16 December 2006.  Her punishment included a reduction to pay grade E-1. 

	d.  On 15 April 2007, the applicant's immediate commander notified her of his intent to initiate separation action against her for misconduct in accordance with     paragraph 14-12b of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), due to a pattern of misconduct, with a general discharge.  The immediate commander stated the reasons for his proposed action were:

* the applicant’s receipt of an NJP for an assault on a Soldier, being disrespectful toward a NCO, and disobeying and being respectful toward her superior commissioned officer
* violation of a no contract order issued by her superior commissioned officer that resulted in the assault
* numerous counselings from 22 February through 6 March 2007
* she was also advised of her rights

	e.  On 15 April 2007, after consulting with counsel, the applicant acknowledged receipt of the proposed separation action for misconduct, the type of discharge she could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to her.  She waived her rights and elected not to submit a statement in her own behalf.  She also acknowledged she:

* understood she could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to her
* understood she could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of a discharge under other than honorable conditions
* understood if she received a discharge characterization of less than honorable, she could make an application to the Army Discharge Review Board (ADRB) or the ABCMR for an upgrade, but she understood that an act of consideration by either board did not imply her discharge would be upgraded  

	f.  On 17 April 2007, her chain of command recommended approval of her separation under the provisions of AR 635-200, chapter paragraph 14-12b.

	g.  On 17 April 2007, the separation authority approved the applicant's discharge and directed the issuance of a general discharge.

	h.  Accordingly, she was discharged from active duty, in pay grade E-1, on 2 May 2007.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 1 year and 1 month of net active service and time lost on 20 February and 5 and 7 March 2007.  Her service was characterized as under honorable conditions (general).  This form also shows she was awarded and authorized:

* National Defense Service Medal
* Global War on Terrorism Service Medal
* Army Service Ribbon

	i.  On 15 February 2017, the ADRB determined that she was properly and equitably discharged and denied her petition for a change in the character and/or reason of her discharge.

5.  By regulation (AR 635-200), action will be taken to separate a member for misconduct such as commission of a serious offense.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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 and post-service achievement 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.  Based upon the short term of service completed prior to a pattern of misconduct which included violent behavior towards others, 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.


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 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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 was 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.

	a.  Paragraph 3-7a states 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 states 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.

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.


ABCMR Record of Proceedings (cont)	 AR20170003743


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