ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  7 August 2019

	DOCKET NUMBER:  AR20180007481


APPLICANT REQUESTS:  an upgrade of her under other than honorable conditions discharge to honorable.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military Record).

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 is requesting to have her discharge upgraded to honorable to be eligible for benefits.  She believed she was being harassed and singled out by the chain of command because she refused to testify against a fellow Soldier.  She had nothing to do with the Soldier’s conduct and wanted to be left out of the situation.  She was falsely accused of having committed crimes she did not commit, but she was young and scared and just signed documents so that the matter would be over.  The chain of command turned on her due to her decision and she felt she was unjustly separated by no fault of her own.  Since 15 years have passed since her separation she believe enough time has passed to heal all feelings towards her time in the service.

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

   a.  She enlisted in the Regular Army on 16 April 1999.

   b.  She served in Korea from 18 January 2001 to 6 March 2002.

   c.  On 19 October 2001, court-martial charges were preferred against her.  Her DD Form 458 (Charge Sheet) indicates she was charged one specification of conspiracy to commit larceny, two specifications of stealing property of a value of over $100 each, one specification of communicating a threat, to wit “I’ll choke you” and “I’ll kill you,” one specification of assault, and one specification of unlawfully striking another Soldier.  She held the rank/grade of private first class/E-3.

	d.  On 21 December 2001, after consulting with legal counsel she requested a discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel).  She acknowledged: 

* maximum punishment
* she is guilty of the charge against her or of a lesser included offense
* she did not desire further rehabilitation or further military service
* she understood that if her request for discharge was accepted she could be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate
* she would be deprived of many or all Army benefits administrated by the Veterans Administration
* she may be deprived of her rights and benefits of a veteran under both Federal and State laws
* she may expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	e.  On 3 January 2002, consistent with the chain of command recommendations, the separation approval authority approved the applicant’s request for discharge for the good of the service.  She would be discharged with an under other than honorable conditions discharge and reduced to the lowest enlisted grade.

	f.  On 6 March 2002, she was discharged from active duty under the provisions of AR 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service.  She completed 2 years, 10 months, and 21 days of active service.  It also shows she was awarded or authorized:

* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar

4.  There is no evidence the applicant has applied to the Army Discharge Review Board for review of her discharge within that board's 15-year statute of limitations. 

5.  By regulation, an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service.

6.  In reaching its determination, the Board can consider the applicant’s petition and her 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.  Based upon the serious offenses of a criminal nature, to include violent behavior directed towards others, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

Prior to closing the case, the Board did note the applicant’s service during the Global War on Terrorism and that decorations for that period of service were not listed on her DD Form 214.  The Board recommends the correction is completed to more accurately depict her military service.

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.
However, as a board note, the Board noted the applicant’s service during the Global War on Terrorism and that decorations for that period of service were not listed on her DD Form 214.  The Board recommends the correction is completed to more accurately depict her military service.
	 
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 (Honorable Discharge) states an honorable discharge is a separation with honor.  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 (General Discharge) states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

   c.  Chapter 10 of this regulation states an individual who has committed an offense or offenses, the punishment for any of which includes a bad conduct discharge or dishonorable discharge, may submit a request for discharge for the good of the service.  An Under Other than Honorable Discharge Certificate normally is appropriate for a member who is discharged for the good of the service.

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 regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds.  The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180007481


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