IN THE CASE OF BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20190002498 APPLICANT REQUESTS: The applicant requests her discharge be upgraded to under honorable conditions (general) or honorable and correction of the narrative reason, separation authority, separation program designator (SPD) code and reentry (RE) code. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Two DD Forms 149 (Application for Correction of Military Record) * Statement of Counseling for Army Regulation 635-200, Chapter 8 * A hand-written direct order, 28 January 1982 * Separation Statement * DA Form 2627 (Record of Proceedings under Article 15, UCMJ) * Commander restriction statement * Certificate of Discharge * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Degree, Master of Science in Social Work * License, Kentucky Board of Social Work * Degree, Bachelor of Arts, Sociology * Fifteen Certificates reflecting post-service degrees, achievements, accomplishments and training 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 received a chapter 10 discharge. She has believed for years that discharge was unjust with frequent reminders of the circumstances that led to it. She was not a criminal nor had she done anything so horrific to warrant the discharge. She was 19 years old, pregnant and made to believe she was going to be court-martialed and incarcerated for failure to be at her place of duty in a timely manner. She made mistakes, but felt like she was constantly being singled out. She was given so many restrictions she was not able to function normally. She received a punishment for inadvertently ripping a log sheet she created to help track enlisted evaluation reports and the company commander used this action to deny her Chapter 8, pregnancy discharge. 3. On 18 February 1981, having previously served in the delayed entry program, the applicant enlisted in the Regular Army for a period of 3 years establishing an expiration term of service (ETS) date on 17 February 1984. Upon completion of basic and advanced individual training and was awarded military occupational specialty (MOS) 71L (Clerk Typist). 4. On 1 July 1981 she was assigned to her first duty station, Service Battery, 1st Battalion, 41st Field Artillery, Germany. 5. On 9 October 1981 she was issued a physical profile for pregnancy with an estimated deliver date of 12 May 1982. 6. On 26 October 1981, she received nonjudicial punishment (NJP) for without authority, on 22 October 1981, absent herself from her place of duty, to wit: orderly room and on 23 October 1981, fail to go to her appointed place of duty, to wit: 0630 formation. a. The applicant appealed the NJP. Her record is void of a personal statement or other evidence in support of her appeal. b. On 16 November 1989her appeal was denied. She was reduced to private (PVT/E1) forfeiture of $50 and 14 days extra duty. A copy of the proceedings shows extra-duty was lined-thru and "restriction" was handwritten in. 7. On 4 December 1981 she was transferred to Headquarters, Headquarters Battalion, 56th Field Artillery Brigade, Germany. Additionally, her record provides a copy of a partially legible Inspector General Action Request with this same date, where the applicant requests justification of rank of private (PV2/E2), paychecks and the company unit manning report (UMR) be inspected. She attached a letter, it states: a. She was writing this statement in reference to a number of unjustified article 15's she feels was a result of unequal racial treatment. She received her first article 15 on 26 October 1981 for missing formation. The reason she missed formation was due to the fact her [unknown/illegible] stopped on the way in and she could not call in. Her appeal to the article 15 was denied because she was not authorized to live off-post; however, her first sergeant and section chief knew she did [lived off post], as a matter of fact, her name and telephone number were listed on the alert roster. b. During her appeal with Colonel X___, she expressed things that were going wrong, such as foregoing the commanders signatures on controlled items such as ration cards, meal cards, and unauthorized personnel working in the orderly room that were slotted in the UMR in their primary MOS's who were working in the orderly room as 71L's. She also advised about the treatment she was getting in the office; for example other service members made formations when they wanted to or when it was mandatory. Nothing was done. c. When she received her article 15, there were several statements from noncommissioned officers (NCO) she had not even seen. She felt as though she was being discriminated against. The first counseling she was given was during a health and welfare inspection, she was told to stay in the office, when the company was told to either go up to the fourth floor or the barracks by the first sergeant. She was not notified and went to the barracks in civilian clothes. Instead of going to work she went to the [snack bar? (Illegible)] after this was counseled by the same NCO. (1) She really didn't feel […illegible] counseled because the things he said were really [illegible] and she was truly offended. For instance, he told her she did not take pride in her job, and I expressed not only to him, but Captain X___, Lieutenant Colonel X__ and X___ that the [illegible] she was doing in the office did not motivate her and I fought for more work, but due to the fact that she was black she was not allowed to do anything but ration cards and meal cards. I felt really unimportant in that position. (2) Aftermaths of this nonsense, she was given more challenging things to do and the commander found that she was capable of doing whatever was assigned to her, so the commander would be able to keep the other two unauthorized service members in the office. When the new clerk came to the company they tried to send the applicant down to a shop area, and put the new girl in her place; however, after she refused to go to the shop, he made arrangement for her to be transferred out of the company. d. Referring back to the first article 15, the punishment imposed was restriction, suspended rank 90 days and suspended forfeiture of $51 for 90 days . Her appeal was denied, the punishment went into effect, during these [illegible] problems took place and while in the field a sergeant first class (SFC/E7) was left [illegible], that whole week the action first sergeant held formation in the morning and [illegible] of the day, one day there was a sergeant (SGT/E5) and the applicant [PV2] in charge of the [illegible] When the acting first sergeant was there he occupied his time by watching porno [pornography]. e. When the acting first sergeant showed up Friday morning, the applicant was a charge of quarters (CQ) runner. She doesn’t know what was wrong with him, but he tried to make a specialist (SP4/E4) sign over [illegible] room keys and she refused to do so. The SP4 and him got into a big argument and both of them were cursing each other, they stirred up a big mess and quite [illegible] were standing around watching and listening; when the SP4 [illegible] the SFC told her to go down to the basement and sweep the floor and she did. When she came back up, he was still insisting she sign for the keys. The applicant [illegible] people told her she was right for not signing for the keys and she really didn't have to sweep because he didn't give her a lawful order. Finally the [illegible] came and signed for the keys. The CQ officially signed the applicant off duty and she was halfway down the hall the phone started ringing. The SFC came out of the [illegible] and told her to come back and answer the phone and she refused to, stating the CQ had already released her. The SFC told her to get her ass out there [illegible], and she still refused to. To keep from arguing with him I told him to go ahead a write a statement up and left the office. Before she had a chance to talk to CPT X__ about the statement, she had an article 15. Once she did talk to him he said himself that SFC was not a fit NCO and did not conduct himself in a military manner. f. CPT X__ said this vacated the previous article 15. Therefore [illegible] reduction to E1 and forfeiture of $51 and said he wants to destroy the article 15s. There are quite a few incidents that pencil and paper will not all her to [illegible] about. If she did, she would end up writing a book. She closed her statement indicating everything stated is true to the best of her knowledge. 6. On 14 December 1981 a Report for Suspension of Favorable Personnel Action (FLAG) was initiated by the commander of Company A, 55th Maintenance Battalion. The basis for the FLAG was "Investigation" with remarks "SM is pending an investigation and possible disciplinary action. 7. Her record contains a copy of Statement of counseling with typed in date of 18 December 1981, under the provisions of Chapter 8 [Pregnancy], Army Regulation 635- 200 that shows the applicant elected discharge with the desire to remain on active duty until [date illegible] February. Her signature and a date is annotated (partially illegible) with a date that with a hand written remark with a date of 14 December 1981 is placed on the top of the form. . 8. On 18 December 1981 she received NJP for on or about 14 December 1981, willfully and unlawfully destroy with intent to destroy a public record to wit: SEER [evaluation} suspense log and suspense slips. a. The applicant appealed and the Judge Advocate denied the appeal; however he stated the proceedings were transacted in accordance with the Law and Regulations and the punishment is neither inappropriate nor disproportionate for the offense committed. She received $128 forfeiture of pay, 14 days extra duty and 14 days restriction. b. The applicant refused to sign item 10 (I have seen the action taken on my appeal) notification of the appeal. 9. A Disposition Form dated 11 January 1982 shows the applicant is married and the commander approved her to live in off-post housing. 10. On 22 January 1982 the applicant was charged for violating four articles of the uniform code of military justice: a. Charge I, Article 86 – three specifications: * 11 January 1982, 1600 hours-failure to go to appointed place of duty (CQ) * 12 January 1982, 0800 hours-failure to go to formation * 16 January 1982, 0900 hours-failure to go to appointed place of duty (CQ) b. Charge II, Article 90 – four specifications: * Having received a lawful command from CPT R__ to perform daily extra duties for a period of 14 days beginning 6 January 1982, did willfully disobey the same on or about 11 and 16 January 1982. * 3 February 1982, having received a lawful command to utilize transportation provided by her Company in order to travel to all appointments, medical or otherwise, with agencies outside the confines of either Hardt or Bismark Kasernes and to report to the commanders office in the orderly room at 0930, did willfully disobey the same c. Charge III, Article 134 – two specifications for breaking restriction on 11 and 17 January 1982. d. Charge IV, Article 91, one specification on 28 January 1982, for being disrespectful in deportment and language towards SFC X___, by contemptuously turning from him and by saying to him, "I have an appointment; I'm not going to be there no matter what; I'm going to my appointment; and your 'f____g" with me! or words to that effect. 10. On 4 February 1982 she was informed of the charges against her and referred for trial to the special court-martial. 11. The applicant's records are void of court-martial orders or separation packet that provide the specific circumstances surrounding her discharge. However, her records do contain a typed statement from the applicant that reflects the following timeline, complete with details and corresponding names of leadership who were present: a. 17 December 1981, in the presence of SGT X___, CPTX___ came to the Adjutant General (AG) office along with first sergeant X___ and informed SP5X___ [applicant's spouse] that she had the choice between a Chapter 8 or Chapter 14 discharge, it did not make any difference to him which one she chose, but if she chose the Chapter 8, it would have to be processed immediately, otherwise he would process the Chapter 14. b. On 21 December 1981 she signed for a Chapter 8 discharge with a discharge date of 29 January 1982. c. On 6 January at 1800 hours she was called into the orderly room accompanied by her spouse and was told her appeal of her article 15 was denied and I would be placed on restriction for 14 days, given 14 days extra duty and forfeiture of $128 from my pay. Her spouse [SP5 Morgan] asked if he could talk to CPT X___. CPT XR__ came out of the office and her spouse explained to the CPT that applicant did not have anything there in the barracks since she had moved off-post, would he allow her to go home and get some necessities? CPT X__ said no, that my restriction started immediately and her spouse asked "Sir, what do you think this is doing to my marriage?" and his [CPT X_] exact word were "I don't really care, I don't give a damn." Her spouse said the company needs to be investigated, CPT X__ stated he took that as a threat and gave him a lawful order to not come in his barracks anymore. d. On 7 January 1982 at 1800 hours, in the presence of SGT X___ and first sergeant, the applicant was called into the orderly room and told by the first sergeant that her Chapter 8 had been pulled. She asked to talk to the commander, the first sergeant accompanied her. Upon entering she saluted and stated "Sir, I have just been informed that the Chapter 8 paperwork has been pulled and I would like to know the reasoning behind this?" His exact words were "you're a dirt bag and a rotten Soldier, that's why." e. On [illegible] January 1982 at 1107 hours the commander went into the supply room in the presence of SFC X___ and stated that Chapter 8 comes under jurisdiction of Chapter 5, but that a Chapter 5 was an expeditious discharge and I would be out of the company within the next two weeks. The applicant asked, didn't he think the Chapter 8 would be through processing in the next two weeks and he stated it had already been pulled and that he wasn't going to give me a Chapter 8 and come Monday morning at 0800 I either accept the Chapter 5 or he would submit a chapter 13. He was unsure if she could request a Chapter 8 under Chapter 5, but I either had a choice between Chapter 5 or Chapter 13. f. On 11 January 1982; (1) 1240 hours, CPT X___ watched her and her spouse at the snack bar. (2) 1412 hours, witnessed by SFC X___, she went into the commanders officer and reported where she was read the Chapter 5 contents and advised she had 3 days to make a decision whether or not she accepted it. She stated, "Sir, I do not choose either one," he asked what she was talking about and she repeated herself. He stated she didn't have a choice, so she had to sign right then or else. She stated "Sir, I have nothing else to say," after standing and looking at each other for a minute he went and go the reenlistment NCO and told me he was making the choice for me, which was a Chapter 13 and also wrote a counseling statement and advised a court-martial trial date would be set- up. (3) 1745 hours in the presence of private X__ she was told by first sergeant X__ that she was only authorized to go to the mess hall, the dispensary and to the dispensary by ambulance only. g. On 12 January 1982 at 1800 hours she was called to the orderly room and told to report to the commander. She asked if she could have her platoon or section chief accompany her and the first sergeant called SFC X__. The commander informed her that her place of duty the next morning was the Judge Advocate General's office. She inquired as to why and he advised he was considering punishment under article 15 for disobeying a direct order, disobeying a lawful order and breaking restriction. She asked if she could see the article 15's and he advised he was tired of playing games with her and that she was to take the piece of white paper he had written the three offenses on. She advised she could remember the offenses and asked if she could talk to the inspector general first thing in the morning, he said yes and directed the first sergeant to have someone escort her the next day, because he wanted to know her whereabouts. 12. On 5 March 1982 separation orders were published with an effective discharge date of 10 March 1982. The authority was Army Regulation 635-200, Chapter 10. The orders and her records are void of a recommended or approved characterization of service. 13. On 10 March 1982, after separation orders were published, the commander requested a mental status evaluation for a Chapter 10 discharge, it show the applicant had the mental capacity to participate in the proceedings. 14. The applicant provides and her records contains a DD Form 214 shows that shows: * Separation Date: 10 March 1982 * Net Active Service: 1 year, 23 days * Separation Authority: Chapter 10, Army Regulation 635-200 * Narrative Reason: Admin Discharge conduct triable by court-martial * Character of Service: Under Conditions Other Than Honorable * Separation Code: JFS * Reenlistment Code: RE-3 * Awards/Decorations: Army Service Ribbon, Marksmanship, M16 Rifle Badge 15. Army Discharge Review Board (ADRB) Docket Number AD84-03545 shows she was present at a personal hearing with counsel and witness(s), her spouse requested relief, stating her undesirable discharge was inequitable because it was based on incidents which occurred after she requested to be discharged for pregnancy. a. Part IV (Analyst Assessment) lists facts and circumstances regarding her discharge are incomplete and lists her NJP, charges, and mental health evaluation. b. Part V (Summary of Review Hearing) shows the applicant, her counsel and a witness [her spouse] were present and testified and provides exhibits of her NJP, charges, chronological timeline and her IG investigation request. c. Part VI (Issues and findings) shows: (1) the applicant's issues were propriety and equity. Her issues were amended in writing, as follows: * Her discharge is excessively harsh when considering her request for pregnancy was severely mishandled. * Pressures from the unit on her marital situation and pregnancy were abnormally severe for the immature Soldier overseas and resulted in unacceptable but understandable behavior. * The applicant received inadequate advice from counsel when she was told she would get a punitive discharge and stockade time. It would be best to take a Chapter 10, when in fact the charges had extremely mitigated and extenuated circumstances * Characterization warrants upgrade and reason warrants change to Secretarial Authority (2) The Boards findings states: (a) The applicant has not submitted an issue of propriety and the ADRB has not otherwise relied upon an issue of propriety to change the discharge. The issue of equity was rejected. The Board carefully considered the applicant's testimony, her witness testimony, and the record and concluded that the discharge is not too harsh. (b) The board rejected the applicant's allegation that her request for pregnancy discharge was severely mishandled. Except for her testimony and that of her witness, there is no documentary evidence was submitted to substantiate she ever requested a pregnancy discharge prior to December 1981. The records shows her NJP and while the sentence from her second NJP was being served, she began a further series of more indiscipline's which resulted in court-martial charges. The Board was more persuaded by the evidence that it was her own misconduct where precluded final action on her request for pregnancy discharge rather than severe mishandling. (c) The Board determined the alleged pressures, if they existed, did not mitigate the seriousness of the charges for which she voluntarily requested separation in lieu of trial by court martial and denied the applicant's request. 16. 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. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. 17. The applicant contends she was 19 years old, pregnant and made to believe she was going to be incarcerated or court-martialed for failure to be at her place of duty in a timely manner. She was being singled out, subjected to a multitude of restrictions she was unable to function normally and believes her separation was unjust. Her record is void of a separation packet; however: a. Based on the available evidence she was 19 years old, pregnant and married. Her records are void of counseling's or other evidence that shows issues prior to her becoming pregnant. In less than a 60 day timeframe she received NJP twice, was flagged, barred, and charged resulting in her requesting a chapter 10 separation. (1) Within 15 days of receiving her pregnancy profile she received NJP, which she appealed and denied. Approximately 9 days after receiving that NJP she filed an IG complaint and 10 days later she was flagged and barred to reenlist. Within 3 days of being barred she received NJP a second time, which she appealed. Her appeal was denied and 10 days later she was charged with 10 specifications of violating UCMJ with the first violation taking place as early as 11 January 1982, which is 5 days from her second NJP appeal being denied. (2) During this timeline she received restriction, forfeiture of pay, extra duty and a command directive requiring her to sign in every hour on the hour after duty hours until retiring to bed and advised she could go to the mess hall and dispensary only by ambulance. b. Notwithstanding her previous ADRB case, the applicant never contended she requested separation under pregnancy prior to December. The available evidence shows on 18 December 1981 she received NJP for the second time, which she appealed and a signed statement of counseling for a pregnancy discharge. Although we are unable to determine what action was executed first. Her record provides a typed chronological timeline that shows in December 1981 the commander gave her an option to either be discharged for misconduct or pregnancy in the presence of SGT R, where she chose separation for pregnancy. The signed statement of counseling supports her contention that she was being processed for separation under pregnancy. c. The ADRB had requested her personnel file to obtain the facts and circumstances surrounding her Chapter 10 that were missing from her records. However, they requested the information directly from the company first sergeant not the higher headquarters. Based on review of the ADRB case the information was not provided. The applicant's typed chronological statement is complete with specific details regarding date time groups and witnesses to the events that occurred. It is not reasonable to believe the applicant statement is not an accurate depiction of what took place in the timeline annotated, which provides valuable insight to what was occurring at the time. 18. The available evidence supports the applicant's contentions. Additionally in support of her application and reflection of her post-service success, she provides evidence that shows she obtained a Master's Degree in Science of Social Work supporting wounded warriors as a licensed clinical social worker, as well as, several commendations and/or awards appreciating her for her work, support, and demonstrating her loyalty and dedication to her community by being an avid volunteer for different organizations. In reaching its determination, the Board can consider the applicant's petition, her service record, and her 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 that there is sufficient 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 found the statement and honorable post-service in supporting wounded warriors and earning her master’s degree to be compelling. Furthermore, evidence indicated that the applicant’s punishment and characterization were too harsh for the circumstances. Therefore, the Board found sufficient evidence to upgrade the discharge. 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 that the evidence presented was 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 her records to show: · Character of Service: Honorable · Separation Authority: Army Regulation 635-200, paragraph 5-8 · Separation Code: LDG Reenlistment Code: RE1 · Narrative Reason for Separation: Pregnancy 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. d. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders 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// ABCMR Record of Proceedings (cont) AR20190002498 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190002498 13 ABCMR Record of Proceedings (cont) AR20190002498 12