ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:

	BOARD DATE:  15 July 2019

	DOCKET NUMBER:  AR20180004550


APPLICANT REQUESTS:  an upgrade of her under other than 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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090003170 on 18 June 2009.

3.  The applicant states she initially joined the Army Reserves for a few months and later transferred into the Regular Army.  The character of service and narrative reason for separation prevents her from buying back her military service time and affects her service computation date for leave purposes.

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

   a.  She enlisted in the Army Reserves on 9 September 1987 to 29 January 1988.  She later enlisted in the Regular Army on 12 October 1988.
   
   b.  She served in Germany from 31 October 1988 to 11 February 1990, also from 24 May 1991 to 31 December 1991.  She also served in Saudi Arabia from 12 December 1990 to 23 May 1991.
   
   c.  The complete facts and circumstances surrounding her discharge are not available to the Board for review with this case. However her DD Form 214 shows she was discharged on 23 December 1992 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  She was reduced to E-1.  She completed 4 years, 2 months and 10 days of active service and 9 months and 5 days of inactive service.  It also shows she was awarded or authorized the:
   
* Army Service Ribbon
* National Defense Service Medal
* Overseas Service Ribbon
* Southwest Asia Service Medal with 3rd Bronze Service Star
* Kuwait Liberation Medal-Saudi Arabia
* Kuwait Liberation Medal-Kuwait
* Good Conduct Medal
* Army Achievement Medal
* Marksmanship Qualification Badge (M16) with Rifle Bar

5.  By regulation, a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.

6.  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 relief is not warranted.  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.  The reason leading to the court-martial charge was not available for review.  Based upon her voluntary request for discharge in lieu of court-martial, the Board determined she admitted guilt to a criminal offense in which her command preferred charges that could have resulted with a BCD.  Based on her offense of a criminal nature, as well as her 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:

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 to amend the decision of the ABCMR set forth in Docket Number AR20090003170 on 18 June 2009.
	 
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 (AR) 635-200 (Personnel Separation – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 3-7a (Honorable Discharge) states 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 (General Discharge) states 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.  Paragraph 3-7c (Under other than honorable conditions) states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service. 

3.  Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

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 (BCMNRs) 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 court-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 on the basis of 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.  AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

ABCMR Record of Proceedings (cont)	 AR20180004550


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