ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 August 2019 DOCKET NUMBER: AR20170010854 APPLICANT REQUESTS: * reconsideration of her earlier request for an upgrade of her under other than honorable conditions discharge to general or honorable * 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 ABCMR in Docket Number AR20120017023 on 4 April 2013. 2. The applicant states she made several attempts at Fort Sam Houston to have her orders changed, so her 2-year-old baby boy could travel with her. She was unable to move to Germany, because her child was under the age of 2 and her orders did not allow her child to travel with her. She could not leave him and chose to leave without authorization. She turned herself in and chose not to continue in the service, because she was pregnant. She served honorably for 5 years and would like her record to reflect that. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 25 November 1980. b. She served in Korea from 12 April 1981 to 7 April 1982. c. Court martial charges were preferred against her on 3 September 1985. Her DD Form 458 (Charge Sheet) indicates she was charged with one specification of being absent without leave (AWOL) from on or about 17 June 1985 to 30 August 1985. d. She consulted with legal counsel on 3 September 1985, who advised her of the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under a. the Uniform Code of Military Justice, the possible effects of a request for discharge, and of the procedures and rights that were available to her. Following consultation with legal counsel, she voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10. In her request for discharge, she acknowledged: * she was making the request of her own free will and she had not been subjected to any coercion * by submitting this request she was acknowledging she was guilty of the charge(s) against her or a lesser included offense * she understood that if the discharge request was approved she could be furnished an Under Than Honorable Discharge Certificate * she understood if such a discharge was approved she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration * she could be deprived of her rights and benefits as a veteran under both Federal and State laws * no automatic upgrading by any government agency of a less than honorable discharge and she must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records * request for discharge may be withdrawn only with consent of the commander exercising court-martial authority, or without that commander’s consent, in the event trial results in an acquittal or the sentence does not include a punitive discharge even though one could have been adjudged by the court e. On 3 September 1985, the initial commander recommended a trial by (special) court martial. f. Order Number 253-27 assigned the applicant to the Personnel Control Facility, as a result of her returning to military control from AWOL status. g. Consistent with the chain of command recommendations, the separation authority approved the applicant’s request for discharge for the good of the service on 7 October 1985 and directed she be would be issued an Other Than Honorable Conditions Discharge Certificate and reduced to the lowest enlisted pay grade. h. The applicant was discharged from active duty on 24 October 1985. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of AR 635-200, Chapter 10 with an under other than honorable conditions characterization of service. It also shows she completed 4 years, 8 months, and 17 days of net active service with lost time from 17 June 1985 to 29 August 1985. She was awarded or authorized the: * Army Service Ribbon * Overseas Service Ribbon * Army Achievement Medal * Noncommissioned Officers Professional Development Ribbon (Basic Level) * Army Good Conduct Medal * Expert Marksmanship Qualification Badge with Rifle Bar (M-16) 4. The applicant applied to the Army Discharge Review Board on 4 April 2013, her request for an upgrade of her discharge were denied. 5. By regulation, an individual who has committed an offense or offenses, the punishment for which, includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. An Undesirable Discharge Certificate will normally be furnished an individual who is discharged for the good of the service. 6. Army Regulation 15-185 (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. 7. The Board should 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 relief was warranted. Based upon the lengthy period of honorable service completed prior to a one-time AWOL offense, the Board concluded that granting clemency by upgrading the applicant’s characterization of service to Under Honorable Conditions (General) was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General). 10/28/2019 X CHAIRPERSON Signed by: 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. Army Regulation 15-185 (ABCMR), the regulation under which this Board operates, provides that ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and to direct or recommend changes in military records to correct the error or injustice, if persuaded that a material error or injustice exists and that sufficient evidence exists on the record. 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. 2. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. 1. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. c. Chapter 10 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 at any time after the charges have been preferred. The request must have included the individual's admission of guilt. A discharge under other than honorable conditions is normally considered appropriate. 3. 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. 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.