ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  20 June 2019

	DOCKET NUMBER:  AR20180003438


APPLICANT REQUESTS: an upgrade to her general, under honorable conditions discharge.

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)

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 did not realize that she had a general discharge until she was ready to buy a home with a Veterans Administration loan.  She was not qualified, although she asked for a discharge for personal reasons regarding her grandfather’s illness.  She feels that her first sergeant was bias towards women serving in the military and he told her that women do not belong in the military.  She is asking that her discharge be upgraded to honorable.  She believes she served her country to the best of her abilities, at the time. 

3.  A review of the applicant’s service record shows:

	a.  She enlisted in the Regular Army on 28 January 1987.

	b.  She served overseas in Germany from 5 July 1987 until 6 July 1988.

	c.  On 17 February 1988, she accepted non judicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful order to wit:  all visitors must leave the premises at 2200 hours.  Her punishment included a reduction in rank to private/E-2. 

	d.  Between 8 August 1987 and 10 February 1988, the applicant received numerous counseling statements for the following offenses:

* failure to follow instructions
* failure to be at her appointed place of duty
* unsatisfactory performance as a Soldier
* failure to repair
* disrespecting a non-commissioned officer
* dereliction of duty

	e.  On 2 June 1988, the applicant's commanding officer notified her of his intent to initiate action to affect her discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separation – Enlisted Personnel), chapter 14,paragraph 14-12b, for misconduct (patterns of misconduct).  Specifically for overall performance of duty not acceptable for military standards.

	f.  The applicant acknowledged receipt and consulted with counsel.  Following consultation with legal counsel, she understood his rights and acknowledged the following:

* she understood if this discharge was approved she could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* she understood that she may expect to encounter substantial prejudices in civilian life if a general discharge under honorable conditions is issued
* she acknowledged she understood she could be deprived of her rights and benefits as a veteran under both Federal and State laws
* she elected not to submit a statement on her own behalf

	g.  The applicant’s commanding officer initiated action to separate her under the provisions of AR 635-200, chapter 14, paragraph 14-12b, patterns of misconduct and recommended the issuance of a general, under honorable conditions discharge.  Her chain of command concurred with the commanders recommendations.

	h.  Consistent with the chain of command's recommendation, the separation authority approved her discharge under the provisions of AR 635-200, chapter 14-12b, and directed the issuance of a general, under honorable conditions discharge.

	i.  Her DD Form 214 shows he was discharged on 6 July 1988 under the provisions of AR 635-200, chapter 14-12b, and given a characterization of general, under honorable conditions discharge.  It also shows she had 1 year, 5 months, and 18 days of active service with 1 day of lost time.  She was awarded or authorized the:

* Army Service Ribbon
* Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge Hand Grenade

4.  By regulation, (AR 635-200), action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history).

5.  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:

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 short term of service with multiple UCMJ violations, 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.  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), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  
   a.  Paragraph 3-7a provided 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 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.  Paragraph 14 of this regulation This chapter establishes policy and prescribes procedures for separating personnel for 'misconduct because of minor disciplinary infractions, a .pattern ,oft misconduct, commission-of a serious offense, conviction by civil authorities,' desertion, and absence without-leave.  Action will be taken to separate a soldier for misconduct when it is clearly established that despite attempts to rehabilitate or develop him or her as a satisfactory soldier, further effort is unlikely to succeed and rehabilitation.is impracticable or Soldier, is not amenable.to rehabilitation (as indicated by the medical or personal history.

	d. Paragraph 14-12b (Pattern of Misconduct), says that a pattern of misconduct consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violates the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.

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)	 AR20180003438


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