ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20180013423 APPLICANT REQUESTS: a. Her under honorable conditions (general) discharge be upgraded to an honorable discharge. b. Correction of her DD Form 214 (Report of Separation from Active Duty), for the period ending 5 October 1978, to show her last name as Txxxxx instead of Mxxxxx. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), 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. There was a scandal in her company, and although there were no witnesses and no evidence to charge her, she had her clearance pulled and she was harassed for months for no reason. She was eventually offered an administrative "early out." However, her understanding at the time was that her discharge would be honorable, which, until recently, she mistakenly thought was the same as "general under honorable." b. She was a good Soldier and she was proud of her military service, even though she was mistreated towards the end. She did not deserve what happened to her and certainly did not deserve anything less than an honorable discharge. She now has a bachelor’s degree in Psychology and Information Technology Science. She is a wife, mother, grandmother and successful business person. She is nearing retirement and would like to be able to volunteer and work part-time at the local office of the Department of Veterans Affairs (VA), to continue serving her community. 3. The applicant enlisted in the Regular Army on 11 August 1976. Consistent with her enlistment, she completed a DD Form 1966 (Application for Enlistment – Armed Forces of the United States) on 12 March 1976, wherein she listed her last name as Mxxxxx [her spouse last name]. The form also contains the requested last name Txxxxx [as her maiden name]. 4. The applicant accepted non-judicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates for the indicated offenses: * on 28 July 1978, for being absent from her place of duty from 1130 hours, 27 July 1978 through on or about 1420 hours, 27 July 1978 * on 1 September 1978, for being from absent from her place of duty from 0730 hours, until on or about 1000 hours, on 18 August and 30 August 1978 * on 14 September 1978, for failing to obey several lawful orders, on or about 24 August 1978 5. The applicant's immediate commander notified the applicant on 14 September 1978 that he was initiating actions to separate her from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31. The applicant's commander advised her of the rights available to her, and of the effect of any actions taken by her to waive her rights. He further advised her that he would recommend that she receive a general discharge. 6. The applicant acknowledged receipt of the proposed separation memorandum on 14 September 1978 and waived representation by counsel and her right to submit a statement in her own behalf. She acknowledged that she may encounter substantial prejudice in civilian life if she received a general discharge, under honorable conditions. 7. The applicant's commander formally recommended her separation from service on 14 September 1978, under the provisions of Army Regulation 635-200, paragraph 5-31, due to her displaying a poor attitude with complete apathy towards military service, her repeated statements concerning her desire to be discharged, and her prior record of misconduct. 8. Consistent with the chain of commands recommendations, the separation authority approved the applicant's discharge on 21 September 1978 and directed that her service be characterized as general, under honorable conditions. 9. The applicant was discharged on 5 October 1978, under the provisions of Army Regulation 635-200, paragraph 5-31. Her DD Form 214 confirms her service was characterized as under honorable conditions (general). Item 9c (Authority and Reason), contains the entry "AR 635-200 Para 5-31 SPD JGH." 10. The applicant's official military personnel file contains documents that show she consistently used the name listed on her DD Form 214 and entrance documents, throughout her service. 11. In reaching its determination, the Board should consider the applicants statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant partial relief. 1. The board found sufficient evidence to grant the applicant’s request to upgrade her discharge. The Board agreed that there was evidence that an injustice had occurred. Evidence indicated that the applicant’s punishment and characterization were too harsh for the circumstances; the applicant received NJP and was discharged for being “AWOL” on three separate occasions for two to three hours at a time. 2. The board found insufficient evidence for relief pertaining to the applicant's request to correct her name in the record. The Board found no evidence in the applicant’s record of the name she requests to reflect on her DD Form 214; the applicant's official military personnel file contains documents that show she consistently used the name listed on her DD Form 214 and entrance documents, throughout her service. The Board agreed regulatory guidance provides for the maintaining of military records as they were during the member’s period of service. 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 amending her DD Form 214 by: * Character of Service: Honorable * Separation Authority: Army Regulation 635-200, paragraph 5-3 * Separation Code: JFF * Reentry Code: 1 * Narrative Reason for Separation: Secretarial Authority 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 name change. 6/18/2019 X 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 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 a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 5 provided for the EDP. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential could be discharged under the EDP. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. Soldiers had to consent to separation under this program in order for commanders to separate them under the provisions of the EDP. Otherwise, a commander was required to separate Soldiers under other provisions of the regulation, which in most cases resulted in an under other than honorable conditions discharge. Individuals discharged under this provision of the regulation were issued either a general or honorable discharge. 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//