IN THE CASE OF: BOARD DATE: 24 June 2019 DOCKET NUMBER: AR20180013510 APPLICANT REQUESTS: The applicant requests an upgrade of her general discharge, change of the separation authority and narrative reason for separation from misconduct (commission of a serious offense) to pregnancy, and a personal Board appearance. 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. The applicant states: a. She was separated because she had more than three checks to be returned in- sufficient funds. During the course of her career in the Army, she had so many pay problems. There were times when all her information was completely deleted out of the system and she received no pay dues. On many occasions she had to receive special pays which caused several problems. This process went on for years. She constantly complained to her command and nothing was done. b. She was told that she had to move out the barracks because she had given birth to her son who was living with her mother. Her command was very upset with her for being pregnant, and because she became pregnant again they tried all they knew to get her out of the Army. When she was told that they were going to chapter her out, she asked if she could get out in accordance with chapter 8 for pregnancy, because she was 6 months pregnant at that time. Her request was not allowed. c. Her supervisor would call places off post just to see if she had a bad check, in order to build a case. This is why she feels it was an injustice. She was not aware that she could request an upgrade and she recently found out that if her discharge is upgraded she could use her Montgomery G.I. Bill. She was unable to use this benefit due to the discharge she received. 3. On 19 November 1990, at the age of 19 years old, the applicant enlisted in the Regular Army for 4 years. Following initial training, she was assigned to Fort Carson, CO. 4. On 11 December 1990, Headquarters and Headquarters Company/Material Management Center Division Support Command, 4th Infantry Division (Mechanized) Fort Carson, Colorado, issued a Policy Letter that stated: a. Cashing personal checks both on and off post is a privilege, not an inherent right. It is each Soldier's responsibility to ensure they have sufficient funds before cashing a persona check. b. In an effort to reduce the potential loss of revenue to check cashing facilities as well as reduce administrative costs associated with recovering funds from dishonored checks, the following policy will be enforced in this command. (1) First Offense: Those Soldiers receiving dishonored checks will be formally counseled, in writing, by their section sergeant and required to attend financial training. (2) Second Offense: Those Soldiers having dishonored checks within a three day period less than 3 months after a first offense will receive a written counseling from the First Sergeant, overs-tamped identification card and Uniformed Code of Military Justice (UCMJ) punishment. (3) Third Offense: Those Soldiers continuing to have dishonored checks after a second offense will be processed for a Bar to Reenlistment and UCMJ punishment. Continued offenses could result in elimination from the service under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel). 5. The applicant was counseled on multiple occasions, in pertinent part, for: * writing bad checks on at least 6 occasions * failing to pay her debts * failing to be at her appointed place of duty * failing a room inspection * missing her dental appointment * not having an adequate/functioning Family Care Plan, and having her child at her place of duty * not paying her over drafted bank account balance * living in the barracks drawing Basic Allowance for Quarters; she was given 30 days to move out of the barracks * requesting an advance pay; she was instructed to attend budget counseling and a check writing class before her request was approved or disapproved * not being promoted based on her poor duty performance and APFT failure * being recommend for UCMJ action if she wrote another bad check * being recommended for a bar to reenlistment and separation action 6. The applicant’s record also shows, in pertinent part, she: * wrote at least 6 bad checks during her military career * received non-judicial punishment (NJP) for writing bad checks * received letters of delinquency/indebtedness for child care and deferred payment accounts * was flagged for Army Physical Fitness Test (APFT) failure 7. On 5 February 1991, a General Counseling Form shows the applicant was having difficulties understanding her financial situation as explained by the Finance Office, and she had not yet received a Leave and Earnings Statement (LES). After a review of the applicant’s LES and having a talk with the Pay Inquiries section of the Finance Office, it was discovered that the applicant had no pay due because she had received casual pay on numerous occasions which equaled the amount she was owed up to that date. The applicant and her supervisor reviewed the printout from the Finance Office and she indicated that she understood. 8. On 15 June 1992, after receiving several notifications of dishonored checks with local merchants, the applicant’s commander requested to have her check-cashing privileges suspended immediately for a year and also requested to have her military identification card over-stamped to prevent further check-cashing abuse on-post or off- post. She had been previously counseled and attended Budget Counseling on 4 November 1991. 9. On 23 July 1992, the applicant’s supervisor submitted a request for disciplinary action. It states: a. The applicant had been counseled several times for writing bad checks. It is also a point that was emphasized on the monthly counseling. Since the supervisor’s arrival in October 1991, the supervisor had counseled the applicant on bad checks that were written in April and May of 1991 and were not paid off as of October 1991. Since the supervisor’s arrival the applicant has had three more bad checks. This continued pattern of writing bad checks reflected a lack of responsibility and lack of financial management on the part of the applicant. The applicant has had her ID card over- stamped, and has attended budget counseling twice. Once on 4 November 1991 and again on 10 July 1992. b. Based on the applicant's past and current history of writing bad checks and her apparent attitude that it's okay to write bad checks as long as restitution is made, the supervisor recommended that NJP and Bar to Reenlistment be initiated. 10. On 28 August 1992, the applicant received NJP for writing checks without sufficient funds. She was flagged from promotion to specialist/E-4 for 90 days. She elected not to appeal. 11. On 20 November 1992, the applicant was flagged for APFT failure. 12. Her record contains counseling that show her duty performance had improved; nevertheless, she was also counseled for failing to pay just debts and not being promoted based on her APFT failure. 13. In May 1993, a medical examination and a mental status evaluation medically cleared the applicant for administrative separation. She was pregnant at this time. 14. On 19 May 1993, her commander notified the applicant of his intent to separate her under the provisions of paragraph 14-12c, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for commission of a serious offense. The commander based his proposed action on numerous bad checks written by applicant and the applicant's failure to follow orders. He indicated that he was recommending her for a general discharge under honorable conditions. 15. On 15 May 2007, the applicant consulted legal counsel and was advised of the basis of the contemplated separation action. She voluntarily waived voluntarily waived consideration of her case by an administrative separation board contingent upon her receiving characterization of service or description of separation no less favorable than general, under honorable conditions. a. She had been advised by her consulting counsel of the basis for the contemplated action to separate her, its effects, and the rights available to her. b. She elected to present statements in her own behalf and stated, in pertinent part: * she would like to stay in the Army and prove that given the chance she is a good Soldier * she asked for a transfer many times and it has always been denied; she felt she was not given an opportunity to excel * she believed that she was being processed under the wrong chapter * her bad check writing stemmed from pay issues such as no pay dues and not receiving all of her pay entitlements * a chapter 14 was usually reserved for Soldiers who committed serious felonies * she had to live off post without receiving all of her pay entitlements * she is not condoning her actions; however, other Soldiers wrote bad checks and did not receive administrative separation action * she felt that she was being separated from the Army because she was pregnant c. She acknowledged that she understood she could encounter substantial prejudice in civilian life should she receive a general discharge under honorable conditions. She also acknowledged that she understood she may be ineligible for many or all benefits as a veteran under both Federal and State laws. 16. On 10 June 1993, the separation authority approved the unit commander's recommendation and directed the applicant be issued a general discharge under honorable conditions. 17. On 18 June 1993, she was discharged accordingly. Her DD Form 214 shows she completed 2 years and 7 months of net active creditable service. Her character of service is listed as under honorable conditions (general), the separation authority is Army Regulation 635-200, paragraph 14-12c. The narrative reason states misconduct, commission of a serious offense. She was not awarded or authorized a personal decoration. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. (1) The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. (2) An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions. b. The regulation also provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 19. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the Board or the Director of ABCMR may authorize a personal appearance. 20. In reaching its determination, the Board can consider the applicant’s petition and service record 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 and performance issues, her pregnancies, the reason for her separation and whether to apply clemency. The Board found insufficient in-service mitigation for her misconduct/performance issues and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. While the applicant was pregnant at the time, her separation was initiated for reasons other than and unrelated to her pregnancy. Based on a preponderance of evidence, the Board determined that the character of service and the narrative reason the applicant received upon separation was not in error or unjust. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 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 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 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 prescribes procedures for separating personnel for misconduct, including the commission of a serious offense. (1) The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. (2) An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions (emphasis added). b. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. 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. 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. 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, 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. 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. 4. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. ABCMR Record of Proceedings (cont) AR20180013510 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180013510 9 ABCMR Record of Proceedings (cont) AR20180013510 7