IBOARD DATE: 2 May 2019 DOCKET NUMBER: AR20180014688 APPLICANT REQUESTS: The applicant requests her under other than honorable conditions (UOTHC) discharge be upgraded to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Statement 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 was never a problem Soldier; she did as she was told and respected her commanding officers. She requested leave several times to go home because of a pending divorce and child custody case. She had been told repeatedly by the acting First Sergeant who was a female would not grant her leave. The acting First Sergeant who was retiring ripped away her dream. At that time she felt in her eyes, her life was ruined. During the counseling she begged not to be discharged from the military. She asked was there anything else she could do to make up for the mistake of going AWOL. The acting First Sergeant looked her in the eyes and said, “This is just not for you, either you get out or you will go before the courts and you will be put in jail.” She cried like a baby but because she lost the custody battle with her children, she gave up and took what was given; she was devastated. She feels she should get an upgrade in her military records because she was bullied out of the military. 3. On 30 March 2001, the applicant enlisted in the Regular Army. 4. On 29 January 2002 she was formerly counseled by her company commander for being on or about 25 December 2001 to on or about 4 January 2002 absent without leave (AWOL). 5. On 25 February 2002, she received non-judicial punishment (NJP) for willfully disobey a noncommissioned officer (NCO). 6. On 19 March 2002, she was listed as AWOL, then dropped from the rolls, and subsequently returned to duty on 24 April 2003. 7. On 12 May 2003, the applicant was charged with being AWOL from on or about 19 March 2002 and did remain so absent in desertion until on or about 24 April 2003. 8. On 28 May 2003, 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. She consulted with legal counsel and was advised of the basis for the trial by court-martial, her available rights and the basis for voluntarily requesting discharge under the provision of Army Regulation 635-200, chapter 10. She signed a request for discharge for the Good of the Service and submitted a statement on her own behalf. a. The applicants statement in part states, she was pregnant at the time she went AWOL. She was in court fighting for custody of her children. She regrets going AWOL but as a mother she did not regret fighting for her children. She asked for emergency leave and it was denied. She requested that she be allowed to separate in lieu of trial by court martial because she has five beautiful children and asked not be taken out of their lives. b. The applicant's chain of command recommended approval of his request and the appropriate separation authority approved the applicant's request. c. The appropriate authority approved the applicant’s request for the good of the service with a characterization of service classified as under other than honorable conditions and the pending court-martial charge would be dismissed effective upon date of separation. d. On 27 June 2003, the applicant was discharged accordingly. 9. Due to the lack of available evidence. We are unable to determine whether she was married or how many children she had at the time of enlistment. She was AWOL approximately 1 year, 1 month, and 5 days. 11. Army Regulation 635-200 states a Chapter 10 is a voluntary discharge request in- lieu of trial by court martial. In a case in which an UOTHC is authorized by regulation, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and did not find any evidence of error, injustice, or inequity; the applicant had limited creditable service, no wartime service and no mitigating circumstances for the misconduct. The Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. 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 (Active Duty Enlisted Administrative Separations), as in effect at the time, set forth the basic authority for the separation of enlisted personnel, it states: a. A Chapter 10 (Discharge in Lieu of Trail by Court Martial) is applicable to members who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. b. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. 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. //NOTHING FOLLOWS//