IN THE CASE OF: BOARD DATE: 10 January 2020 DOCKET NUMBER: AR20180003907 APPLICANT REQUESTS: Her under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 20 December 2017, with self-authored statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) 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 enlisted in the Army on 5 August 1980 and she was very excited for the opportunities and adventures ahead. While she was in basic training and advanced individual training, she was an excellent Soldier. She never got into any trouble and she also showed other Soldiers excellence. b. Her only permanent station was in Germany, where she arrived as a food service specialist. Her first sergeant had her working in the motor pool processing documents and she got the backlog "completed." A few months later she reported to the mess hall and was treated rudely and called a traitor by other Soldiers who stated that she only did what she was ordered to do. c. After a few weeks as a food service specialist, she was told that she had the perfect job. A staff sergeant told her he believed women belong pregnant, barefoot, and in the kitchen. Needless to say, she responded incorrectly and was given an Article 15 for her response. She lost her rank and she never received any promotions. Approximately two months later, there was a prayer breakfast meeting and she stopped to listen to the chaplain. She was reprimanded. d. There was an instance where she became very ill due to receiving a mandatory flu vaccination and she had a fellow Soldier attempt to bring her a meal. The staff sergeant denied her meals for that day. She became engaged to a Soldier who had left Germany a few months earlier and once he left, she was sexually harassed by two Soldiers. She reported it but does not know if any action was ever taken against the two Soldiers. She received counseling and she left Germany in February 1982. e. Right before she was to return to Germany, her husband told her not to return. She was raised very strictly to abide and obey her husband. She was discharged on 5 August 1982. She was provided the opportunity to continue her military career and she advised "the sergeant" that she would need to speak with her husband. Her husband advised her to obtain a discharge. f. She and her husband divorced on 17 February 1984. She wishes she could relive those days, as she now realizes he was wrong and she should have followed her heart and continued her service. Her decision has haunted her to this day. She is 59 years old and she receives social security disability due to a stroke, anxiety, and acute depression. She is not requesting an upgrade of her discharge to receive Department of Veterans Affairs (VA) benefits. She is requesting an upgrade so she can go to her grave knowing that she served her country with pride and honor. 3. The applicant enlisted in the Regular Army for 3 years on 6 August 1980. 4. The applicant accepted nonjudicial punishment (NJP) on 15 July 1981, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongfully using reproachful words towards another Soldier. 5. Charges were preferred against the applicant on 11 May 1982, for violations of the UCMJ. Her DD Form 458 (Charge Sheet) shows she was charged with being absent without leave (AWOL) from on or about 28 February until on or about 11 May 1982. 6. The applicant consulted with legal counsel on or about 13 May 1982. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court- martial. 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 a bad conduct or dishonorable discharge. She further acknowledged she understood that if her discharge request was approved 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. c. She was advised she could submit any statements she desired in her own behalf. Her request shows she declined to submit a statement. 7. The separation authority approved the applicant's request for discharge on 14 June 1982. 8. The applicant was discharged on 6 July 1982, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court- martial. Her DD Form 214 confirms she was discharged in the lowest enlisted grade and her service was characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, she consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The applicant contends she was treated rudely and sexually harassed while she was in the Army. However, a review of the available records fails to reveal evidence to support her contentions. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, her record of service, the frequency and nature of her misconduct, a charge sheet, her request for discharge and the reason for her separation. The Board found majority insufficient evidence of in-service mitigation to overcome the misconduct; one member found sufficient evidence to support relief. The applicant provided no evidence of post-service achievements, medical documents or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board majority determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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. X CHAIRPERSON 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 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 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 10 states 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 would normally be furnished to an individual who was discharged for the good of the service. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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 a discharge, which may be warranted on equity or relief from injustice grounds. a. 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 on the basis of equity, injustice, or clemency grounds, Boards 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. b. 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//