ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:


	BOARD DATE:  19 June 2019

	DOCKET NUMBER:  AR20170007768


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, the initial reason for her discharge was for a lack of a family care plan.  She states it was changed by the battalion commander once it reached his desk due to an incident between her and a noncommissioned officer (NCO).  She wrote a letter explaining the circumstances and still had misconduct added to her discharge.  This was not fair since the initial paperwork that was filed was because of a lack of family care plan.  She also states she is aware that there has been some time that has passed since this incident.  However, it saddens her to see misconduct under her name.  The incident was about her children.  The NCO was also chastised about the way she approached her and tried to have her children taken away.  She feels like this permanent stain on her name is unfair.  She feels her discharge was due to the lack of a family care plan.  She was a single parent and had no one to help take care of her children.  When she spoke to her unit first sergeant, she was told the separation under family care plan was the best course of action.  Then she was informed that because she had an argument with her NCO in charge, that her discharge was being changed. She is only asking for what is fair.  She exited the military not for misconduct, but for lack of a family care plan.

3.  A review of the applicant’s service record shows:

	a.  She enlisted on 5 November 1999, in to the Regular Army.
	b.  On 1 March 2001, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 for one specifications of failure to be at her appointed place of duty.  Her punishment consisted, in part, of reduction to private/PV2.

	c.  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 – Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense), based on:

* three violations of disrespect to an NCO
* two violations of failure to repair
* two violations of failure to pay just debt

	d.  The applicant acknowledged the commander’s intent to separate her under the provisions of AR 635-200, chapter 14-12c (no date reflected).  She consulted with legal counsel 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 (no date reflected).  She acknowledged:

* she may expect to encounter substantial prejudice in civilian life because of a general under other than honorable conditions discharge
* she will be ineligible to apply for enlistment in the United States Army for a period of two years after discharge

	e.  Subsequent to the applicant's acknowledgement, on 17 September 2001, 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.

	f.  On 18 September 2001, the chain of command reviewed the separation recommendation and subsequently recommended approval of the separation with a characterization of service as under honorable conditions.

	g.  On 24 September 2001, following a legal review for legal sufficiency, the separation authority approved the recommendation for separation for commission of a serious offense and ordered her service be characterized as general, under honorable conditions.

	h.  On 30 October 2001, she was reported absent without leave (AWOL) for a period of 8 days.  She returned to duty on 7 November 2001.

	i.  On 3 December 2001, 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 2 years, and 21 days of active duty service.  She had 8 days of lost time from 30 October 2001 to 6 November 2001.  Her DD Form 214 shows in:

* item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized): Army Service Ribbon
* item 24 (Character of Service), Under Honorable Conditions (General)
* item 26 (Separation Code), JKQ (Misconduct)
* item 28 (Narrative Reason for Separation), Misconduct 

4.  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.

5.  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.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon the pattern of misconduct which led to the applicant’s separation, 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 (Personnel Separations) sets T 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.

ABCMR Record of Proceedings (cont)	 AR20170007768


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