ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 May 2019 DOCKET NUMBER: AR20170004346 APPLICANT REQUESTS: reconsideration of her previous request for an upgrade of her general, under honorable conditions discharge. She also requests a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070009459 on 24 July 2007. 2. The applicant states she has no nonjudicial punishment (NJP) on record for which she was separated or caused her discharge under honorable conditions. She feels she should not have been discharged. She had no lost time of active duty because she was on leave the evidence is a DA Form 31 (Request and Authority for Leave). 3. A review of the applicant’s service record shows: a. She enlisted in the Connecticut Army National Guard (CTARNG) on 15 August 1978, for a period of 6 years. On 13 March 1979, she was honorably discharged from the CTARNG and she transferred to the Regular Army (RA) on 12 July 1979, for a period of 4 years. b. On 14 July 1983, she was released from active duty her for completion of required service under provision of chapter 4 Army Regulation (AR) 635-200 (Personnel Separations –Enlisted Separations). Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 4 years, and 2 days of active service. She was awarded/authorized: * Army Service Ribbon * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Marksman Marksmanship Qualification Hand Grenade Badge (2nd Class) * Overseas Service Ribbon * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon (1) * Army Achievement Medal c. On 15 August 1989, she enlisted for an CTARNG. She entered active duty in the Active Guard Reserve (AGR) program on 25 June 1990. d. Her record is void of a separation packet available for the Board to review. However her record contains a counseling session memorandum on 10 April 1992 which was requested by her command. The counseling session includes an evaluation by her enlisted personnel manager in which he states the applicant feels she has done no wrong and that the whole world is out to get her. Her attitude is “forget it” or “no problem”, but later she claims that no one gave her a chance to give her side of the story, this was untrue. He believes the applicant is not willing to accept responsibility for her actions –someone else is always to blame. Her attitude caused a very explosive atmosphere within the office. e. On 25 February 1993, a DA Form 31 shows an approval for ordinary leave for the period of 25 February 1993 to 12 March 1993 by the unit commander. f. On 5 March 1993, a letter of reprimand for inefficiency states the applicant was ordered to report on 8 March 1993 or she would be considered absent without leave (AWOL). She had failed to report or contact her unit for the previous 3 days and this was unacceptable because it showed that she was irresponsible. g. On 5 April 1993, a second letter of reprimand for inefficiency stated the applicant failed to report to her unit for 2 weeks. She was notified via phone that she had been carried as AWOL without pay since 22 March 1993. h. On 19 April 1993, her immediate commander notified her of his intent to initiate separation action against her in accordance with National Guard Regulation (NGR) 600-5 (Personnel -General). The specific reason for the discharge was that the applicant displayed inappropriate professional and personal conduct and moral professional dereliction. i. On 27 April 1993, the applicant responded to the recommendation for involuntary separation for cause. She stated she understood the unit’s difficulties with her absence from the job. She regretted that the decision had been made to end her AGR tour and asked that she not be terminated due to the following circumstances: * while on leave she was driving and struck another automobile, her car was totaled * she was under treatment for injuries to her leg * she was unable to arrange for any transportation and the insurance had not settled her claim * she had no funds to purchase another car and the bus schedules got her to work late in the morning; she had three other issues with transportation while at this unit * she was requesting for a transfer of duty closer to her residence j. On 11 May 1993, her immediate commander recommended her involuntary separation for cause in accordance with NGR 600-5 for inappropriate professional and personal conduct and moral and professional dereliction. The commander stated the applicant’s rebuttal statement was unfounded and contradictory to the actual events that occurred. He stated the applicant conducted herself in an unprofessional manner and her conduct was unbecoming a Soldier. He recommended she be separated immediately from her current AGR/tour of duty. k. She was involuntarily discharged from active duty with a general, under honorable conditions discharge on 4 June 1993, under the provisions of AR 635-120 (Personnel Separations- Officer Resignations and Discharges), chapter 10 for misconduct, moral or professional dereliction (i.e., AR 635-200, Personnel Separations). Her DD Form 214 shows she completed 2 years, 8 months and 3 days of active military service with lost time from 22 March 1993 to 4 June 1993. l. On 24 June 1993, her NGB Form 22 (Report of Separation and Record of Service) shows she was discharged from the ARNG and U. S. Army Reserve with an under honorable conditions discharge in accordance with NGR 600-200 (Personnel General Enlisted Personnel Management System) paragraph 8-27x and 8-27g for expiration of service obligation unsatisfactory participant. The remarks show she was AGR from 25 June 1990 to 15 July 1992. It also shows she completed 4 years and 2 days of active federal service. She was awarded/authorized: * Army Service Ribbon * National Defense Service Medal * Army Achievement Medal * Overseas Service Ribbon * Army Good Conduct Medal * Noncommissioned Officer Professional Development Ribbon m. The applicant applied to the Army Discharge Review Board (ADRB) and on 16 July 1997, the ADRB informed her that after careful consideration, the ADRB determined she was properly and equitably discharged. Accordingly, her request to upgrade her separation discharge was denied. n. She also appealed to the Army Board for Correction of Military Records (ABCMR) but, on 24 July 2007 her request was denied. 4. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 5. NGR 600-5 (Personnel General- AGR Program) personnel will be involuntarily removed from AGR status only in accordance with procedures prescribed herein and only after the State Adjutant General determines that all applicable laws and regulations have been complied with. The State Adjutant General will review all recommendations for involuntary separation under this paragraph and will make the final determination. This authority may not be delegated. 6. Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel) soldier may be separated per this chapter when it is determined that he or she is unqualified for further military service because of unsatisfactory performance. 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 they could reach a fair and equitable decision without a personal appearance by the applicant. Additionally, the Board found that relief was not warranted. Based upon the pattern of misconduct over an extended period of time, as well as the applicant already receiving a general discharge, the Board found no error or injustice which would warrant making a change to the applicant’s characterization of service. 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: 1. 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. 2. Prior to closing the case the Board did note the administrative note below by the analyst of record and recommended that change be made to more accurately depict the military service of the applicant. 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): A review of the applicant’s records shows the wrong regulation was listed on item 25 separation authority her DD Form 214 should be corrected to show separation authority AR 635-200 Chapter 13 for unsatisfactory performance. REFERENCES: 1. Army Regulation (AR) 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. National Guard Regulation AR 600-5 (Personnel General- Active Guard Reserve (AGR) Program) personnel will be involuntarily removed from AGR status only in accordance with procedures prescribed herein and only after the State Adjutant General determines that all applicable laws and regulations have been complied with. The State Adjutant General will review all recommendations for involuntary separation under this paragraph and will make the final determination. This authority may not be delegated. Guidelines for involuntary separation are counseling or a letter of reprimand will be initiated by a commander or supervisor when an individual’s degree of efficiency, manner of performance of duty, military conduct, or commission of derogatory act makes such action appropriate. 3. AR 635-200 (Personnel Separations – Enlisted Separations) in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a (Honorable Discharge) 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 would be clearly inappropriate. 4. 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 on the basis of 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) AR20170004346 6 1