ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 11 June 2019 DOCKET NUMBER: AR20180002077 APPLICANT REQUESTS: * an upgrade of her under other than honorable conditions discharge * correction to her date of birth APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 4/1 (Enlistment/Reenlistment Document, 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, she was told she would receive a general discharge because she was never convicted of anything. Also, her date of birth is incorrect. 3. The applicant provides a copy of her DD Form 4/1 (Enlistment / Reenlistment Document, Armed Forces of the United States), which reflects in block 6 (Date of Birth, YYMMDD) ## XXX ##. 4. A review of the applicant's service record shows: a. She enlisted in the Army on 12 February 1991. b. DD Form 458 (Charge Sheet), dated 24 November 1992, court-martial charges were preferred against the applicant for one specification of being AWOL from 3 September 1992 to 22 November 1992. c. On 25 November 1992, the applicant consulted with legal counsel. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to her. Subsequent to receiving legal counsel, she voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. In her request for discharge, she acknowledged her understanding that: * by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of an undesirable discharge * she acknowledged she understood that if her discharge request was accepted she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws * she was advised she could submit any statements she desired in her own behalf; she did not submit any statements d. The separation authority approved the applicant's request for discharge on 24 February 1993, under the provisions of AR 635-200, chapter 10, for the good of the service, and directed that she be reduced to the lowest enlisted grade and discharged under other than honorable conditions. e. The applicant was discharged from the Army on 22 March 1993. Her DD Form 214 shows she was discharged under the provisions of AR 635-200, chapter 10, for the good of the service, and her service was characterized as under other than honorable conditions. She completed 1 year, 10 months, and 21 days of active service and she had lost time from 3 September 1992 to 22 November 1992. The DD Form 214 also shows in: * Items 4a (Grade, Rate or rank) and 4b (Pay Grade) show PV1/E-1 * Item 12h (Effective Date of Pay Grade) - 24 February 1993 * Item 26 (Separation Code) - KFS * Item 27 (Reentry Code) - 3 * Item 28 (Narrative Reason for Separation) - For the Good of Service - In Lieu of Court-Martial 4. By regulation, 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. A discharge under other than honorable conditions is normally considered appropriate. 5. The Board should consider the applicant's submissions in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The Board applied Department of Defense standards for consideration of discharge upgrade requests to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. Based upon a preponderance of evidence, to include the relatively short term of service prior to the lengthy AWOL offense, and the absence of character witness statements or evidence of post-service achievements for the Board to consider as matters supporting clemency, the Board concluded the characterization of service received at the time of discharge was not in error or unjust. Based upon a review of the records, the Board did find sufficient documentary evidence supporting the claim that the applicant’s date of birth currently on her DD Form 214 was incorrect and determined that error should be corrected. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by amending the applicant’s DD Form 214 by making the following changes to Item 5 are made: * Delete the following entry: “620801” * Replace with the following entry: “720609 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. 6/18/2019 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 635-200 (Personnel Separations - Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 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. c. 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. 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.