ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  11 July 2019

	DOCKET NUMBER:  AR20180005130


APPLICANT REQUESTS: an upgrade to 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)
* Certificate of Appreciation
* Character Reference from Veteran Affairs Director

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:  

     a.  She was out in the field for three weeks and when her unit came back, she went to the base club where there was only standing room.  Someone asked her to save their seat while they got up to dance and she placed her foot up on the chair and another Soldier approached her and asked her to remove her foot from the chair.  She did and the next thing she remembered was waking up in the brig, being charged with disorderly conduct.  She is not sure what happened, but was being blamed for the incident.  She had a drink and always could handle the alcohol, but was later suspicious of someone slipping something into her drink.  

     b.  She requested to leave the Army because she became pregnant with her first child, who was born in June of 1982.  She also says that in her early 30’s she was diagnosed with paranoid schizophrenia and has taken medication for most of her adult life.  She has worked all of her adult life to support her children and that it would mean the world to her if she could get her discharge upgraded to an honorable. 

3.  The applicant provides:

	a.  A certificate of appreciation from her employer that states that she is a model employee because of her reliability and dependability.

	b.  A character reference from a director at Veterans Affairs that says that she believes the applicant’s story to be true.  She says that the applicant has worked all of her adult life and has a stellar background.  She is asking for consideration for the applicant, that her discharge be upgraded.

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

	a.  She enlisted in the Regular Army on 6 June 1980.

	b.  On 25 March 1981, she accepted non-judicial punishment, under the provisions of Article 15, Uniform Code of Military Justice, for failing to go, at the prescribed time, to her appointed place of duty on 6 March 1981.

	c.  On 6 August 1981, she departed her unit in an absent without leave status and did not return to military control until 31 August 1981.

	d.  Her record is void of the circumstances leading up to her separation and her entire separation packet, however, her DD Form 214 shows that she was discharged under the provision of Army Regulation (AR) 635-200, Chapter 10, for the good of the service in lieu of trail by court-martial and issued an under other than honorable discharge characterization.  

	e.  She completed 11 months and 28 days of net active service with 26 days of lost time.

	f.  She was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  By regulation, a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States 1969 (Revised Edition), 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 reviewing the application and all supporting documents, to include the DoD guidance on liberal consideration when reviewing discharge upgrade requests, the Board determined that partial relief was warranted.   Based upon the nature of the misconduct which resulted in the applicant’s separation and the demonstrated growth by the character evidence submitted along with the application, the Board concluded that granting clemency by upgrading the characterization of service to Under Honorable Conditions (General) was appropriate.

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 the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as Under Honorable Conditions (General).
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 to Honorable.
	 
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 1-13a provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude.

   b.  Paragraph 1-13b provides that a general discharge is a separation from the Army under honorable conditions.  It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The recipient of a general discharge is normally a member whose military record and performance is satisfactory. The member may have had frequent non-judicial punishments but not for serious infractions.

	c.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses, the punishment for any of which, under the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, 1969 (Revised Edition), includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.  The provisions of the Table of Maximum Punishments, Section B, paragraph 127c MCM 1969 (Rev) are not applicable to requests for discharge pursuant to this chapter.  The request for discharge may be submitted at any time after court-martial charges are preferred against the member, regardless of whether the charges are referred to a court-martial and regardless of the type of court-martial to which the charges may be referred.  The request for discharge may be submitted at any stage in the processing of the charges until final action on the case by the court-martial convening authority.

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.


ABCMR Record of Proceedings (cont)	 AR20180005130


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