ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  24 October 2019 DOCKET NUMBER:  AR20190002042 


APPLICANT REQUESTS:  The applicant requests: 

.an upgrade of her under other than honorable conditions discharge (UOTHC) toa general under honorable conditions discharge

.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 ofthe United States) in lieu of DD Form 149 (Application for Correction of MilitaryRecord)

.Self-Authored Statement

.DD Form 214 (Certificate of Release or Discharge from Active Duty) for periodending 22 February 2002

.Two Letters/Character References



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant provided a two page self-authored statement, which she explained:

.How she was a model Soldier who was one of two Soldiers in her company topossess a secret security clearance

.She was placed on a special mission and was unable to attend her out-processing briefing to prepare herself and her family for their permanent changeof station (PCS) to Germany

.She was five and a half to six months pregnant at the time of her PCS

.She had to leave her husband and son behind while she PCSd to Germany

.How the situation with her sick son caused her stress and anxiety


.Her son became very ill and was hospitalized and she was granted leave for oneweek because of it

.Why she decided to go absent without leave (AWOL)

.Why she decided to turn herself in and accept the UOTHC discharge



3.On 24 June 1997, at the age of 18 years old, the applicant enlisted in the RegularArmy for a term of 3 years.  On 10 November 1999, she reenlisted for a term of 4 years.

4.On 23 May 2000, she went AWOL and on 23 June 2000, she was dropped from theunit rolls.  On 16 January 2001, she surrendered and was returned to military control.

5.On 22 January 2001, court-martial charges were preferred against the applicant forone specification of being AWOL from 23 May 2000 and remaining absent until16 January 2001.

6.On 22 January 2001, the applicant voluntarily requested discharge for the good ofthe service in lieu of trial by court-martial under the provisions of Army Regulation (AR)635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  She consulted withlegal counsel and was advised of the basis for the trial by court-martial, her availablerights and the basis for voluntarily requesting discharge under the provision of AR 635-200, chapter 10.  She elected not to submit statements on her own behalf.

7.The applicant's chain of command recommended approval of her request and on11 February 2002, the appropriate separation authority approved the applicant's requestdirecting that she be discharged under other than honorable conditions and she bereduced to private (PVT)/E-1.

8.On 22 February 2002, she was discharged accordingly under the provisions AR 635-200, in lieu of trial by court-martial.  Her service was characterized as UOTHC.  Shecompleted 4 years and 1 day of net active service this period; 19 months and 19 dayssince her reenlistment.  Her DD Form 214 shows:

.She was awarded or authorized the Army Service Ribbon

.Dates of Time Lost During This Period:  20000523 – 20010115 (AWOL for 238days)



9.The applicant provides:

.DD Form 293

.Self-Authored Statement

.DD Form 214 for period ending 22 February 2002

.Two Letters/Character References, which attest to her character as a coworker,wife, mother, and friend


10.On 18 February 2003, the Army Discharge Review Board denied her petition toupgrade her UOTHC discharge, determining that her discharge was proper andequitable.

11.The applicant explained the situation which led to her going AWOL.  Her recordshows she enlisted at the age of 18 years old, charges were preferred against her forone specification of being AWOL, and she had 238 days lost time due to being AWOL.She completed 19 months and 19 days of her 48 months contractual obligation.

12.In regards to the applicant's request for a personal appearance, Army Regulation15-185 (ABCMR), states an applicant is not entitled to a hearing before the Board;however, the request for a hearing may be authorized by a panel of the Board or by theDirector of ABCMR.

13.AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial bycourt martial.  A member may be awarded an honorable or general discharge, if duringthe current enlistment period of obligated service he has been awarded a personaldecoration or if warranted by the particular circumstances of a specific case.

14.In reaching its determination, the Board can consider the applicant’s petition andservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

BOARD DISCUSSION: 





1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records, regulatory requirements, and published DoD guidance forconsideration of discharge upgrade requests.  The Board considered the applicant'sstatement and the letters of support /character references and found they supported aclemency determination.  The Board determined that relief is warranted and that theapplicant’s discharge should be corrected to show a characterization of general underhonorable conditions.2.The Board also noted that Administrative Notes identifying administrative correctionsneeded.3.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 equitabledecision.  As a result, a personal appearance hearing is not required to serve theinterest of equity and justice in this case.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

: : GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: : : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by showing onher DD Form 214 for the period of service ending 22 February 2002 the servicecharacterization of general under honorable conditions.  The Board further recommendsexecuting the actions described in Administrative Note(s) below.

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to a personal appearance before the board.

X 

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): 

A review of the applicant's record shows her DD Form 214 (Certificate of Release orDischarge from Active Duty), for the period ending 22 February 2002, is missing an important entry that may affect her eligibility for post-service benefits.  As a result,amend the DD Form 214 by adding the following entry to item 13 (Decorations, Medals, 
Badges, Citations, and Campaign Ribbons Awarded or Authorized):  Driver Badge, Driver-W (for wheeled vehicles). 

REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords 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 oflimitations if the ABCMR determines it would be in the interest of justice to do so.
2.Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), ineffect at the time, set forth the basic authority for the administrative separation ofenlisted personnel.

a.An honorable discharge was a separation with honor and entitled the recipient tobenefits provided by law.  An honorable characterization is appropriate when the quality of the Soldier’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.A general discharge was a separation from the Army under honorable conditions.When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 

c.When a member is to be issued a discharge under other than honorableconditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. 

d.A Chapter 10 (Discharge for the Good of the Service) is applicable to memberswho 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.   

3.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records regarding equity, injustice or clemency determinations.Clemency generally refers to relief specifically granted from a criminal sentence andBCMRs may grant clemency regardless of the court-martial forum.  However, theguidance applies to more than clemency from a sentencing in a court-martial; it also
applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  
 
a.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. 
 
b.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 
 
4.  AR 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. 
 
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