ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170018193 APPLICANT REQUESTS: an upgrade of her general under honorable conditions discharge 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: a. She would like her general under honorable conditions discharge upgraded to honorable, because she needs the benefits. She have made mistakes by going absent without leave (AWOL) and she was young and never planned on joining the military, but her father talked her into it. She never did any type of Reserve Officers Training Corps while in high school and she was home sick and very unhappy inside. b. In addition, she was depressed and afraid to tell anyone, so she decided to go home and not come back. She apologizes for her behavior during that time. However, the times she was present, she worked hard and did a great job. If she knew then, what she knows now, she would have done things differently. She now knows at the age of 39 that serving was the best thing she could have ever done. It helped shaped her into a great person. Regardless of her discharge, she is still proud to be an American and proud to know she served her country. She just wants to be able to have great benefits and know that in spite of her poor decisions at times, she was a Soldier. 3. A review of the applicant’s service record shows: a. On 7 January 1997, she enlisted into the Regular Army. b. On 9 June 1998, she accepted non-judicial punishment (NJP) for failure to report absence without leave. c. On 28 August 1998, a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) was initiated Army Physical Fitness Test. d. On 3 September 1998, she received NJP for failure to be at her appointed place of duty and disobeying a lawful order. She was reduced to E-2, and received 14 days extra duty and restriction. e. On 18 December 1998, she received NJP for failure to be at her appointed place of duty. f. On 15 July 1999, her immediate commander notified her that he intended to initiate action to separate her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 14-12b (Patterns of Misconduct) for repeated patterns of being absent without leave (AWOL) and failing to be at her appointed place of duty. She also acknowledged receipt of the memorandum. g. The applicant was advised by her consulting counsel of the basis for the contemplated action to separate her for a pattern of misconduct under AR 635-200. Chapter 14-12b and its effects; of the rights available to her; and the effect of any action taken by her in waiving her rights. She understood that if she had less than 6 years total of active military service at the time of separation and are being considered for separation for reason of misconduct under AR 635-200, Chapter 14, she is not entitled to have her case heard by an administrative separation board unless she is being considered for a discharge under other than honorable conditions. During her consultation she acknowledged: * she could be ineligible for many or all benefits as a veteran under both Federal and State laws * she could expect to encounter substantial prejudice in civilian life * if she received a discharge or characterization of service which is less than honorable, she could make an application to the Army Discharge Review Board or Army Board of Correction of Military Records for upgrading * she realized that an act of consideration by either board does not imply that her discharge would be upgraded h. Her immediate commander forwarded the initiated separation action against her to the next higher command. Her chain of command recommended a general discharge. i. Consistent with the chain of command’s recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, Chapter 14-12b. j. On 16 August 1999, she was discharged from active duty with a general, under honorable conditions discharge. k. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 2 years, 7 months, and 6 days of net active service. She was awarded or authorized the Army Service Ribbon and the Marksmanship Qualification Rifle Badge (M-16). It also shows she has lost time: 8 December 1998 to 9 December 1998; and 25 May 1999 to 26 May 1999 4. By regulation, action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or her, develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635-200, Chapter 14-12b. 5. In reaching its determination, the Board can consider the applicant’s petition and her 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. She did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the record, 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. ADMINISTRATIVE NOTE(S): Not Applicable 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 separation of enlisted personnel. a. Chapter 3-7a (Honorable Discharge) an honorable discharge is a separation with honor. 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 clearly inappropriate. b. Chapter 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 14 states action will be taken to separate a member for misconduct when it is clearly established that despite attempts to rehabilitate him or develop him or her as a satisfactory Soldier, further effort is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under AR 635- 200, Chapter 14-12b. 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) AR20170018193 4 1