ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 May 2019 DOCKET NUMBER: AR20170017191 APPLICANT REQUESTS: an upgrade of her general, under honorable conditions discharge to an honorable discharge. 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, 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 accepts responsibility for her actions but, believes her record to be unjust due to her ex-husband and father of her children making it his mission to destroy her military career and reputation. She adds that they share custody in raising their granddaughter and she needs this upgrade so that she can move forward and accomplish the goals that this discharge has prevented her from achieving. 3. A review of the applicant’s service record shows: a. She enlisted in the Regular Army on 20 July 1999. b. She accepted nonjudicial punishment (NJP) on 28 May 2001 for unlawfully striking a child under the age of 16 years on the face and back with a belt. Her punishment included a reduction to private/E-2. c. A DA Form 4126-R (Bar to Reenlistment Certificate) was initiated on the applicant on 29 June 2001 for receiving NJP. d. On 29 June 2001, the applicant’s immediate commander notified her of his intent to initiate separation action against her in accordance with chapter 14-12c (Separation for Misconduct), Army Regulation (AR) 635-200 (Personnel Separations-Enlisted a. Personnel), due to assault consummated by battery upon a child under 16 years of age. He recommended a general, under honorable conditions characterization of service. e. On 3 July 2001, she was advised by her consulting counsel of the basis for the contemplated action to separate her for commission of a serious offense under the provisions of chapter 14-12c, AR 635-200; of the rights available to her; and the effect of any action taken by her in waiting any of her rights. She understood: * because she had less than 6 years active and/or reserve military service at the time of separation, she was not entitled to have her case heard by an administrative separation board * she elected to submit statements on her own behalf (statement(s) were not available for review) * she may be given a general discharge if eliminated from the service * she may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to her f. On 9 July 2001, her immediate commander initiated action to separate her under the provisions of chapter 14-12c, AR 635-200. Her chain of command recommended approval with the issuance of a general, under honorable conditions discharge. g. The separation authority approved the applicant’s discharge under the provisions of chapter 14-12c, AR 635-200. He ordered the issuance of a General, Under Honorable Conditions Discharge Certificate. h. The applicant was discharged from active duty on 18 September 2001 under the provisions of chapter 14-12c, AR 635-200. Her DD Form 214, (Certificate of Release or Discharge from Active Duty), shows she received a characterization of service of general, under honorable conditions. She completed 2 years, 1 month, and 29 days of active service. It also shows she was awarded or authorized the Army Service Ribbon and Expert Marksmanship Qualification Badge with Rifle Bar. 4. By regulation, action will be taken to separation a Soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed. Soldiers are subject to action for commission of a serious offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be authorized for the same or a closely related offense. 5. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. 1. 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 relief was not warranted. Based upon the misconduct, which involved violent behavior, the Board concluded that the characterization of service received at the time of discharge was appropriate. 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. 5/13/2019 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. 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) 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 states 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. 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 14 -12c of that regulation provides that members are subject to separation for commission in a serious offense. Commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge would be authorized separation. 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, 1. 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.