ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 June 2019 DOCKET NUMBER: AR20170007085 APPLICANT REQUESTS: * an upgrade of her under other than honorable discharge to a general discharge * 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. 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 that she would like her under other than honorable discharge upgraded to a general discharge. She believes her discharge was inequitable and there are records to support the discharge upgrade request to general. The record is unjust because there is nothing to support the discharge, no records to state the reason or facts to justify. She also requests a personal appearance before the Board. 3. The applicant provides a copy of a congressional inquiry dated 13 March 2017 with email correspondence between the applicant and her state senator’s office. A copy of the Army Discharge Review Board denial letter dated 8 May 1998, states that a review of her military records and all other available evidence has determined that she was properly and equitably discharged. 4. The applicant’s service records are not available for review with this case. An exhaustive search was conducted to locate her service records which are necessary in the processing of her case, with no success. Her case is being considered based on her DD Form 214 (Certificate of Release or Discharge from Active Duty). a. She entered active duty as a commissioned officer on 26 June 1989 and held a military occupational specialty/area of concentration 35D (Tactical Intelligence). b. She served overseas for 5 months and 16 days. Her last duty assignment before separation was U.S. Army South (Panama). c. The complete facts and circumstances surrounding the applicant's discharge action are not available for review with this case. However, her record contains a DD Form 214 that shows: * she was discharged on 20 June 1990 under the provisions of Army Regulation (AR) 635-120 (Officer Resignation and Discharges), chapter 5 for conduct triable by court-martial, with a character of service discharge of under other than honorable * she completed 11 months and 2 days of active service * she held the rank/grade of second lieutenant/0-1 with an effective date of rank of 13 May 1989 * she was awarded or authorized the Army Service Ribbon 5. By regulation (AR 635-120), chapter 5 states that an officer may submit a resignation for the good of the service when court-martial charges are preferred, he or she is under a suspended sentence of dismissal. 6. Also 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. 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 found the relief was not warranted. Based upon the lack of documentary evidence to reviewing the Board concluded that based upon the education level of the applicant, she knowingly and willingly requested the discharge in lieu of facing court-martial charges; therefore, the Board found no error or injustice which would warrant an upgrade in the characterization of service. The Board also found that the applicant failed to provide any character evidence to show that she learned and grown from the events leading to her discharge. 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 (AR) 600-8-24 (Officer Transfers and Discharges) (currently in effect), paragraph 1-21a, 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 members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Whenever there is doubt, it is to be resolved in favor of the individual. Paragraph 1-21b, provides that a general discharge is a separation from the Army under honorable conditions is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-120 (Officer Resignations and Discharges) (in effect at the time) provides policies and procedures for separating officers from active duty, and implements the provisions for DOD directive 1332.29. Chapter 5 of this regulation states an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward a trial by general court martial; When he or she is under a suspended sentence of dismissal; or he or she elects to tender a resignation because of reason outlined in AR 635-100, paragraph 5-11a. (If the officer the officer elects to resign after general court-martial charges have been preferred, para 5-2 applies. If he or she elects to request separation after being recommended for elimination, cha4 or 8 as appropriate, applies. 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 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) AR20170007085 0 3 1