ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 July 2019 DOCKET NUMBER: AR20170008279 APPLICANT REQUESTS: * an upgrade of her under other than honorable conditions discharge to an honorable * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for 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 a different person than she was then. It was over 15 years ago and she has made substantial changes. She has been working at the prestigious Morehouse School of Medicine for 13 years and just celebrated her second year wedding anniversary. Her husband makes her a better person. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 19 November 1997. b. DD Form 458 (Charge Sheet), dated 26 March 2001, special court-martial charges were preferred against her for one specification for being Absent Without Leave from 2 December 2000 to 26 March 2001. c. On 30 March 2001, she consulted with legal counsel and was advised of her rights. Following consultation with counsel, she subsequently requested, a discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. In this request, the applicant admitted guilt to the offense, or a lesser included offense. In her request, she acknowledged: * she did not desire further rehabilitation or a desire to perform further military service * if her discharge was approved, she may be discharged with an under other than honorable conditions discharge * she would be deprived of many or all Army benefits and that she may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law * she could expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge d. Consistent with the chain of commands recommendations to discharge for the good of the service with an under other than honorable discharge, the separation authority approved the applicant’s request for discharge. She would be issued an Under Other Than Honorable Conditions Discharge Certificate. e. On 14 January 2002, she was discharged from active duty under the provision of AR 635-200, Chapter 10. She completed 3 years, 10 months and 2 days of net active service during this period of service and she had lost time from 2 December 2000 to 25 March 2001. 4. In regards to the applicant’s request for an appearance before the Board, AR 15-185 (Army Board for Correction of Military Records (ABCMR)) states ABCMR members will review all applications that are properly before them to determine the existence of an error. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 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: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After review of the application and all evidence, the Board determined relief is warranted. 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. The applicant accepts responsibility for her actions and was remorseful with her application, demonstrating she understands her actions were not that of all Soldiers. The Board agreed an Under Honorable Conditions (General) character of service is warranted, as her lengthy period of AWOL shows she did not meet the standards of acceptable conduct and performance of duty for Army personnel making her suitable for an Honorable characterization. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her a DD Form 214 for the period ending 14 January 2002 showing her character of service as Under Honorable Conditions (General). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing the character of service to Honorable. 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the regulation in effect at the time (and the version currently in effect) provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a of the regulation currently in effect 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 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. Paragraph 3-7b of the regulation currently in effect provides 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008279 3 1