ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 September 2019 DOCKET NUMBER: AR20170013764 APPLICANT REQUESTS: an upgrade of her under other than honorable conditions discharge APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate or Release or Discharge from Active Duty) * Self-Authored Statement * Seven Character Reference Letters * Permanent Order 157-022 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, in effect: a. She served honorably her entire period of service, never receiving any Article 15s or negative counseling statements. She is not nor has she ever been a criminal or dishonest person. Her father served 23 years in the U.S. Air Force; therefore, she was afforded the opportunity to grow up in different communities around the world. b. When she injured her knee playing basketball, she was temporarily assigned to the Unit Mail Room. She had no idea it was wrong to take magazines home from the Unit Mail Room. Everyone that worked there did and she was specifically told by her supervisor that it was okay. She was also given movies by her supervisor under the false pretense that the movies had been doubled ordered by his wife. She later found out that those items were stolen; she was charged, but never convicted. She made some statements to the Criminal Investigative Detachment (CID) when she was charged with larceny of U.S. Mail in an attempt to protect those around her. c. At the time she accepted the Chapter 10 discharge, she was scared and did not know the impact of her decision and what it would do to her in the future. Her commander and Trial Defense Attorney coached her into accepting the chapter, saying it was for own good and the good of the Army. To this day, she does not feel she did anything wrong or inappropriate at the time in accepting material (magazines that could no longer be forwarded to the states after 6 months). d. She had an opportunity to join the Army Reserve years ago, but felt that her discharge was her punishment from allowing her to serve again. She has since come to terms of what she allowed to go wrong in her career. 3. The applicant provides: a. Permanent Order 157-022, dated 6 June 2002, reflects she was awarded the Army Good Conduct Medal for the period of service from 11 February 1999 to 10 February 2002. b. Character references from several employers all of which attest to her organizational skills, her punctuality, her easy going demeanor, and overall professionalism. Further stating that the customers and employers recognize her as highly dependable. 4. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 11 February 1999. b. DD Form 458 (Charge Sheet), dated 3 July 2002, indicates court marital charges were preferred against her on for one specification of wrongfully stealing several items from the community mail room between 20 November 2001 and 14 February 2002. c. She consulted with legal counsel on 29 July 2002 and subsequently requested discharge under the provisions (UP) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 (Discharge for the Good of the Service). He acknowledged: * the maximum punishment if found guilty * if her request was accepted, she may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate * if her discharge request is accepted, she would be deprived of many or all Army benefits * she may be ineligible for many or all benefits administered by the Veterans Administration, and that she may be deprived of her rights and benefits as a Veteran under both Federal and State law * she may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge d. On 26 August 2002, the separation authority approved the applicant’s request for discharge in lieu of court-martial and ordered her service be characterized as under other than honorable conditions and reduction to the lowest enlisted pay grade. e. She was discharged from the Army on 30 August 2002. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court-martial, and her service was characterized as under other than honorable conditions. She completed 3 years, 8 months and 30 days of net active service. 5. On 21 August 2008, the Army Discharge Review Board (ADRB) determined the applicant's discharge processing was proper and equitable and denied her request for an upgrade. 6. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) states, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge 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. 7. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions and letters of support 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. Based upon the offense of a criminal nature, as well as the failure to accept responsibility and show remorse for the events leading to her 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. 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. 2. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable) provides that 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. b. Paragraph 3-7b (General) 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. A characterization of under honorable conditions may be issued only when the reason for the soldier's separation specifically allows such characterization. It will not be issued to soldiers upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty. c. Chapter 10 of that regulation provides, in pertinent part, a soldier who has committed an offense or offenses, the punishment for which under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court-martial. The provisions of RCM 1003(d), MCM 2002 do not apply to requests for discharge per this chapter unless the case has been referred to a court-martial authorized to adjudge a punitive discharge. The discharge request may be submitted after court-martial charges are preferred against the soldier or, where required after referral, until final action by the court-martial convening authority. 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) AR20170013764 5 1