IN THE CASE OF: BOARD DATE: 10 April 2020 DOCKET NUMBER: AR20180014020 APPLICANT REQUESTS: her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 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), dated 26 September 2018 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, in effect, she was being treated for depression and was not discharged due to any misconduct. She didn’t do anything wrong but just let it go. She could have been eligible for benefits if she took care of this. 3. In preparation for enlistment into Regular Army, the applicant underwent an initial entry examination on 24 February 1988. She did not report any mental deficiencies or depression at that time. She was disqualified for service on 26 May 1988, due to prior feminine issues, pending a response from her civilian doctor. She received a medical waiver for her disqualification on 4 August 1989, and was found qualified for enlistment at the time. 4. The applicant enlisted in the Regular Army on 10 August 1989. 5. The applicant’s service record contains an administrative Letter of Reprimand from her commander, for violating Article 92 of the Manual for Courts Martials (MCM), and the 235th Signal Company Standard Operating Procedures (SOP), by possessing a bottle of hard liquor in her barracks room on or about 10 June 1990. She elected not to make any statements in her behalf on 21 June 1990. 6. The applicant’s service record does contain a complete separation packet. However, it appears the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in lieu of trial by court-martial. Orders Number, issued by Headquarters, U.S. Army Communications – Electronics Command and Fort Monmouth, Fort Monmouth, NJ on 20 August 1991, ordered the applicant's discharge from the Regular Army effective 23 August 1991. 7. The applicant signed a Medical Examination for Separation Statement or Option form on 23 August 1991, declining a separation examination. 8. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents. The applicant is not registered in the VA’s Joint Legacy Viewer (JLV) and the Armed Forces Health Longitudinal Technology Application (AHLTA), & Health Artifacts Image Management Solutions (HAIMS) did not exist at the time of the applicant’s service. The applicant does not have any military records in iPERMS. A review of the available documentation did not reveal medical evidence to support a behavioral health diagnosis at the time of her discharge and thus no diagnosis to consider with respect to mitigation of misconduct. In addition, there is no information regarding the misconduct that led to her discharge. 9. The applicant was discharged on 23 August 1991, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 she was issued, which she authenticated as accurate with her signature, confirms she was discharged in the grade of specialist/E4 and her service was characterized as UOTHC. 10. The issuance of a discharge under the provisions of Army Regulation 635-200, Chapter 10, required the applicant to have requested from the Army – voluntarily, willingly, and in writing – discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects her overall record of service. 11. The Board should consider the applicant's request and statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the absence of a separation packet and the reason for and her rank upon separation. The Board considered the medical records and conclusions of the advising official. The Board concurred with the medical advisory opinion finding insufficient evidence of in- service behavior health mitigating factors to overcome misconduct. The applicant provided no evidence of a behavioral health diagnosis; the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. The Board did find that the applicant had a condition that once prevented her enlistment and that she was not reduced in rank upon separation in spite of the reason for separation. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation should be upgrade as a matter of clemency. 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 the DD Form 214 for the period of service ending 23 August 1991 to reflect in item 24 (Character of Service) – “Under honorable conditions (General)” vice “Under other than honorable conditions.” 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 upgrade of the applicant’s character of service 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 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 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge was normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 July 2018, 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. 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// ABCMR Record of Proceedings (cont) AR20180014020 6 ARMY BOARD FOR CORRECTION FOR MILITARY RECORDS Record of Proceedings 1