ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20180013801 APPLICANT REQUESTS: upgrade of her discharge under other than honorable conditions (UOTHC) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision * Member of Congress’ correspondence * Privacy Act Release 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 granted a disability from the VA, but she can’t get paid because of her discharge and she lost her job. b. She has a UOTHC discharge, which she didn’t deserve because she only had about 2 weeks left until she fulfilled her service contract. She is a service-connected disabled veteran, but can’t receive her benefits without an upgrade to her discharge. She requested an upgrade many years ago which was denied then again in October, but she hasn’t heard anything about her recent request. 3. The applicant enlisted in the Regular Army on 13 April 1981. 4. A DA Form 3975 (Military Police (MP) Report) shows: a. A complaint was received by the Fort Eustis, VA, Provost Marshal Office of larceny of private property committed by the applicant on 10 November 1983. b. An MP investigation revealed that two blank money orders in the amount of $300.00 were removed from the wallet of Private A____, which was unsecured and unattended in the TV room of Building 650. c. The money order serial numbers were identified and tracked through copies received in December 1983, showing the applicant’s name on them. The applicant was advised of her rights and waived them, rendering a written confession to finding the blank money orders and issuing them to the Avon Cosmetics Company for payment of her bills. 5. A DA Form 2823 (Sworn Statement), dated 3 January 1984, rendered by the applicant, states: a. She was working in the Recreation Center, Building 650 on 10 November 1983. She was cleaning up and went into the movie room to turn off the power to the machine when she discovered a windbreaker lying on one of the chairs. She picked up the windbreaker and turned it in to the front desk then returned to the movie room and began to empty the ash trays when she discovered two blank money orders, one for $100.00 and one for $200.00 in a chair. b. She took the money orders and placed them in her pocket. She kept the money orders for a few days and when no one asked her about them, she made them out to the Avon Company and mailed them out to pay some bills she owed Avon. She didn’t turn in the money orders because she figured it was just like found money and she did not ask anyone at the front desk if anyone reported losing them. 6. Records indicate on an unspecified date she underwent a medical examination for the purpose of separation. She was found to have no defects or diagnoses and was deemed qualified for separation. 7. On 29 February 1984, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, because charges of larceny were preferred against her. a. She was afforded the opportunity to consult with appointed counsel for consultation and was fully advised of her rights. b. She acknowledged understanding she may be discharged under conditions other than honorable and was advised of the possible effects of an UOTHC discharge, depriving her of many or all benefits administered by the VA. c. She acknowledged having been advised by counsel of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice. 8. On 2 March 1984, her immediate commander recommended disapproval of the applicant’s request for voluntary discharge for the good of the service in lieu of trail by court-martial. a. Due to the seriousness of the charges against the applicant, her commander felt it was in the best interest of the command to prosecute this case to the fullest extent possible. b. He stated he did not have reasonable grounds to believe the applicant was mentally defective at the time of her misconduct. 9. On 6 March 1984, her battalion commander recommended approval of the applicant’s request for discharge. a. Having considered the court-martial charge sheet as well as the discharge request in lieu of court-martial, he felt the applicant should be immediately discharged from the service. b. He felt there was sufficient evidence to obtain a conviction and if found guilty, he seriously doubted that continued rehabilitative efforts would result in significant improvement of the applicant or her value to the service. 10. On 7 March 1984, her brigade commander recommended the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 10 and the issuance of a UOTHC Certificate. Having considered the larceny charges, he could not in good conscience recommend an honorable discharge, as too many Soldiers serve faithfully and in a manner which habitually demonstrates their reliability and honesty. 11. Her DD Form 214 shows she was discharged accordingly on 14 March 1984, for the good of the service under the provisions of Army Regulation 635-200, chapter 10, after 2 years, 11 months, and 2 days of net active service. Her service was characterized as UOTHC. 12. The applicant applied to the Army Discharge Review Board (ADRB), requesting an upgrade to her discharge and on 9 December 1986, she was informed the ADRB denied her request, having determined her discharge was both proper and equitable. 13. She provided a VA Rating Decision, dated 21 August 2018, which shows she was granted service-connection for treatment purposes only for the following conditions: * bilateral feet metatarsalgia (painful inflammation of the ball of the foot) * bilateral foot scars * left toot hammer toes, third and little toe * lumbosacral strain and scoliosis thoracic spine (middle segment of spine) * mycotic (fungal infection) nails, ingrown toe nails and painful corns/callus * right foot hammer toe, little toe 14. On 13 June 2019, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion, which states, based on the available evidence, there is no indication the applicant failed to meet military medical retention standards of Army Regulation 635-40 (Standards of Medical Fitness) and there is no evidence she had a boardable medical or mental health condition at the time of her discharge. There is insufficient evidence of any disability or condition that would mitigate the misconduct leading to her discharge or warrant separation through medical channels. A copy of the complete medical advisory was provided to the Board for their review and consideration. 15. The applicant was provided a copy of the advisory opinion on 21 June 2019, and given an opportunity to submit comments, but she did not respond. 16. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. 17. 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 18. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, a medical advisory opinion and published DOD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s sworn statement related to the misconduct, the frequency and nature of the misconduct, the reason for her separation, her VA rating, the conclusions of the advising official and whether to apply clemency. The Board found the applicant provided no evidence of post-service achievements or letters of reference in support of clemency. The Board determined that based on the circumstances of her misconduct and a preponderance of evidence, the character of service she received at separation was too harsh and an upgrade was warranted. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 14 March 1984 to show in item 24 (Character of Service) – “General, under honorable conditions”. 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. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the 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 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. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs 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. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. ABCMR Record of Proceedings (cont) AR20180013801 6 1