ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  25 July 2010 DOCKET NUMBER:  AR20190004612 


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 Provisionsof Title 10, U.S. Code, Section 1552)



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states she was in a car accident and unable to contact her dutystation.  Because of this, she was considered to have been absent without leave(AWOL).  She had turned in the paper work to show that her face and mouth wereinjured and her jaw had been wired shut.

3.The applicant enlisted in the Regular Army on 18 February 1983.

4.The applicant was granted emergency leave on 18 August 1983, with an extensionuntil 8 September 1983.  She was temporarily reassigned pending processing for acompassionate reassignment.  It is reported that she was unable to provide thenecessary medical documentation to justify the reassignment and was ordered to returnto her unit.

5.The applicant failed to return as was reported by her unit as AWOL, on or about20 October 1983.  She surrendered to military authorities on or about 10 February 1984.

6.Court-martial charges were preferred against the applicant on 13 February 1984 forviolations of the Uniform Code of Military Justice (UCMJ).  Her DD Form 458 (Charge
Sheet) shows she was charged with being AWOL from on or about 20 October 1983 through on or about 10 February 1984, a period of 114 days. 

7.The applicant's record contains a hand-written memorandum for record, dated15 February 1984, which details a chronology of events with respect to the applicant'sleave and AWOL periods.  The author, a noncommissioned officer (NCO) serving in therank of sergeant first class (SFC), noted:

.she was reassigned due to a pending compassionate reassignment on8 September 1983

.she was unable to provide the necessary medical documents and was order toreturn to her unit on 7 October 1983

.she contacted her unit on 7 and 16 October 1983 stating she had not receivedher pay

.on 19 October 1983 she was involved in a car accident, was treated, andreleased

.she contacted her recruiter for advice in November and not again until8 February 1984, as she was AWOL she was advised to turn herself in bothtimes



8.The applicant consulted with legal counsel on 15 February 1984.

a.She was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to her.   

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge under the provision of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of trial by court-martial.  In her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. She further acknowledged she understood that if her discharge request was approved she could be deprived of many or all Army benefits, she could be ineligible for many or all benefits administered by the Veterans Administration, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws.   

c.She was advised she could submit any statements she desired in her own behalf.Her request for discharge indicates she declined to submit a statement. 

9.The separation authority approved the applicant's request for discharge on29 February 1984, under the provisions of Army Regulation 635-200, Chapter 10, in lieu
of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged UOTHC. 

10.The applicant was discharged on 16 March 1984, under the provisions of ArmyRegulation 635-200, Chapter 10, for the good of the service, and her service wascharacterized as UOTHC.  Her DD Form 214 further shows she was discharged in therank/grade of private/E-1.

11.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, she consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

12.The applicant's record does not contain and the applicant has not provided anymedical documentation regarding the severity of her injuries from a car accident that isreported to have occurred while she was in an AWOL status.

13.The Board should consider the applicant's statement and the evidence of record inaccordance with the published equity, injustice, or clemency determination guidance.

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 for consideration of discharge upgrade requests and clemency tothe complete evidentiary record.  The Board considered the the applicant’s statement, her record of service, statements in the record, the frequency and nature of her misconduct and the reason for her separation, and found insufficient evidence of error,injustice, or inequity.  The Board found that the applicant had limited creditableservice, no wartime service and that there is  insufficient evidence of mitigatingcircumstances for the misconduct. The Board found insufficient evidence in the form of of post-service honorable conduct or letters of reference that might have mitigated thedischarge characterization or supported clemency.  Based on a preponderance of evidence, the Board determined that the applicant’s discharge characterization isappropriate. 
BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 


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. 


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 ABCMR to excuse an applicant's failure to timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 provides that a general discharge is a separation from the Armyunder honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

c.Chapter 10 provides that a member who has committed an offense or offensesfor which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 

4.The Under Secretary of Defense for Personnel and Readiness issued guidance toMilitary Discharge Review Boards and Boards for Correction of Military/Naval Recordson 25 July 2018, regarding equity, injustice, or clemency determinations.  Clemencygenerally refers to relief specifically granted from a criminal sentence.  Boards forCorrection of Military/Naval Records may grant clemency regardless of the court-martialforum.  However, the guidance applies to more than clemency from a sentencing in acourt-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 andprinciples 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 ofservice 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. 
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