ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 July 2019

	DOCKET NUMBER:  AR20180001336


APPLICANT REQUESTS:  

* An upgrade of her under other than honorable conditions discharge
* Personal appearance before the Board

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 3 Letters of support from TM, SAM, and YGM

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 pleading with the Board to upgrade her discharge.  The impact of her discharge has followed her for decades, in a negative manner.  She knows she is a good but not perfect person.  She follows the rules and causes no trouble.  This current discharge is preventing her the necessary entitlements that by serving she should have.  Not blaming anyone, but herself for not questioning the court appointed attorney at the time of the court-martial.  Following instructions to do what is good for the Army and should have went to trial.  Doing what was asked of her is what got her into that mess in the first place, along with being kind and not telling people no.  Trusting people and taking them for their word.  After years passing, she believes she should have elected a trial back then.  She really did not know the degree of the charges against her at the time.  All she knew was she did not steal the money orders.  The young lady at the time wanted her to buy her things from Korea and mail them to her.  She told her that her name was on them and she said do not worry just mark it out and put her name.  Naive and unaware that she was going to set the applicant up she would not have done it for her.  She wanted a jury trial, however she trusted her attorney.  She is very sorry and takes full accountability for this situation.  She was wrong for trusting people at their word.  She was wrong in putting her name on anything.  It has been over 25 years after reflecting back she really did not know what the discharge entailed.  She did not know that it was a court-martial.  She was told the discharge was fine just other than honorable.  Council at the time did not really explain any other course of action she could have taken.

3.  The applicant provides the following:

	a.  Her DD Form 214 that is shows she was discharged on 22 September 1993 under other than honorable conditions under the provisions (UP) of Army Regulation (AR) 635-200(Personnel Separations-Enlisted Personnel) for the good of the service in lieu of court-martial.

	b.  Three letters of support from X, X, and X that in effect explain how good of a friend she is.  She is very resilient and has established a family of her own.  The applicant is brilliant and honorable and loves her country.  She is willing to assist anyone at any time.  She has high character and has been a pillar to her family.  She is a person of high integrity and faith.  She does not take her journey in life for granted, always striving for better.

4.  A review of the applicant’s service records shows the following:

	a.  She enlisted in the Regular Army on 5 October 1989.

	b.  She accepted non-judicial punishment on 6 November 1992 for without authority, go from her appointed place of duty.

	c.  DD Form 458 (Charge Sheet) indicates court marital charges were preferred on 19 August 1993.  She was charged with one specification of theft of 5 travelers express money orders in the aggregate value of $600.00, the property of X__.  One specification of wrongfully open certain mail matter addressed to X____. X___, which said letter was then in the custody of the applicant.  One specification of unlawfully make under lawful oath, false statements.  One specification of derelict in the performance of duties in that she willfully failed to forward a letter addressed to x____. X___, as it was her duty to do.


	d.  She consulted with legal counsel on 7 September 1993 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).  She 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

	e.  On 7 September 1993, her immediate and intermediate commander recommended approval and an under other than honorable conditions discharge.

	f.  Consistent with the chain of command's recommendation, the separation authority approved the applicant’s request for discharge on 14 September 1993, for the good of the service and ordered her service be characterized as under other than honorable conditions.  She would be reduced to private/E-1.

	g.  On 22 September 1993, she was discharged UP of AR 635-200, Chapter 10 under conditions other than honorable in the rank of private/E-1.  Her DD Form 214 inadvertently shows she completed 93 years, 11 months, and 11 days of active service.  Her actual net active service this period was 3 years, 11 months, and 18 days.  She was awarded the Army Achievement Medal, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Qualification Badge (Grenade), and Marksmanship Qualification Badge (Rifle).

5.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations.

6.  By regulation, AR 15-185 (ABCMR) 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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

8.  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 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 multiple offenses of a criminal nature being the basis for the applicant’s separation, 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:

1.  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.

2.  Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant.
	 
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):

A review of the applicant’s records shows her net active service this period inadvertently entered as 93 years, 11 months, and 11 days in block 12c of her DD Form 214.  As a result, amend her DD Form 214 to correctly read in block 12c 3 years, 11 months, and 18 days of net active service this period.


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) 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.  

	a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that 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.

3.  AR 635-200 (Personnel Separations-Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

	a.  Paragraph 3-7a(1) states 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 be clearly inappropriate.  Only the honorable characterization may be awarded a member upon completion of his or her period of enlistment or period for which called or ordered to active duty or active duty for training, or where required under specific reasons for separation, unless an entry level status separation (uncharacterized) is warranted.

	b.  Paragraph 3-7b(1) 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.  Paragraph 3-7b(2) states a characterization of under honorable conditions may be issued only when the reason for the member's separation specifically allows such characterization.  It will not be issued to members upon separation at expiration of their period of enlistment, military service obligation, or period for which called or ordered to active duty.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180001336


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