BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20190005300 APPLICANT REQUESTS: her under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 29 March 2019 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 is not the same person she was when she was discharged. She had a new baby and no one to help care for her. She is a productive citizen and great parent. 3. The applicant enlisted in the U.S. Army Reserve (USAR) on 16 April 1996. 4. The applicant's service record contains: a. A DA Form 2-1 (Personnel Qualification Record – Part II), which shows she completed advanced individual training (AIT) on 13 November 1997, becoming qualified in military occupational specialty (MOS) 91B (Medical Specialist). She was released from initial active duty training (IADT) on 1 April 1997 and was returned to the control of her USAR unit of assignment. She was listed as absent without leave the same day for not reporting to AIT for MOS 91C (Licensed Practical Nurse). b. Two DA Forms 4187 (Personnel Actions) that show her status was changed from present for duty to absent without leave (AWOL), effective 1 April 1997, and from AWOL to dropped from rolls, effective 1 May 1997. c. A DD Form 458 (Charge Sheet) that shows court-martial charges were preferred against her on 31 March 1999, for being AWOL from on or about 1 April 1997 through on or about 25 March 1999. 5. The applicant consulted with legal counsel on 31 March 1999. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct discharge, and the procedures and rights that were available to her. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge 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 further advised that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that she must apply to the Army Discharge Review Board (ADRB) or the ABCMR if she wished for a review of her discharge. She realized that the act of consideration by either board does not imply that her discharge would be upgraded. d. She was advised she could submit any statements she desired on her own behalf. She submitted the following statement on 30 March 1999: I completed the first phase of my AIT at C Company, 232d, Fort Sam Houston, TX, and graduated on 31 March 1997. On graduation day, Drill Sergeant B_ gave me a one-way plane ticket home. After graduation all those who were being assigned to E Company, 187th Medical Battalion, were marched to E Company by DS H_ and DS N_ and placed in a formation. We were asked who had tickets to go home and those of us with tickets were directed to call a taxi and go home. I did just that. In May, the date for my unit's next drill, I reported to my reserve unit (Fort Totten, Queens, New York). Although there was no inprocessing for that drill, I completed that drill. At the June drill, I inprocessed and told them that I was pregnant. I was told that 23 July 1997 was the next class at the 187th Medical Battalion. SGT D_ told me that since I was pregnant I could not go to that class. I completed that drill, and attended every drill until September 1997. At that time my commander told me that due to my pregnancy I was in an inactive reserve status and issued an inactive reserve ID card. This was all during the time that I was "supposed" AWOL. I had no knowledge of the fact that my unit was counting me as AWOL or as a deserter. I received active duty pay from May 1997 until February 1998. I tried to get the pay situation straightened out through the reserve finance but they told me they could not stop payment, only initiate it. The NCO there told me to be prepared to pay the money back when finance discovered the mistake. I understand that I will have to pay any money back which is not due me. I received no telephonic communication, no written communication, and no orders from them. Due to my pregnancy, I met with my reserve commander, CPT H_, regularly. I was not, however, ever counseled on my option to request discharge from the military due to my pregnancy. My reserve unit only told me that due to my pregnancy that I could not do anything at drills except sit behind a desk, which is what I did at drills through September 1997. Two weeks ago, while I was at my mother's house, SPC L_ called and told my mother that I was a deserter and that a warrant had been issued for my arrest. Before I could make arrangements for my 13-month old daughter, I was apprehended by the civilian police, turned over to the military authorities in Fort Hamilton, NY, and then given a provisional pass to come to Fort Knox. I was given the airline ticket to go home on 1 April 1997, I had no knowledge of any requirement to report to Fort Sam Houston, TX, and I completed the drills with my unit until my commander told me I was in an inactive reserve status. I request you withdraw the charge of AWOL and allow me to complete AIT at Fort Sam Houston, TX, and continue in my military career. [Signed by Applicant] 6. The applicant's commander recommended approval of the applicant's request for discharge on 15 October 1999, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and recommended that she be issued a UOTHC discharge. 7. The separation authority approved the applicant's request for discharge on 18 December 1999, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a UOTHC discharge. 8. The applicant was discharged on 28 June 2000, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. The DD Form 214 she was issued shows her service was characterized as UOTHC. 9. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, she consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 10. The Board should consider the applicant's request in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. The Board considered the applicant’s statement, her record of service, her completion of IADT, the reason for her discharge and her statement at the time and whether to apply clemency. The Board found insufficient evidence of mitigating circumstances to overcome the applicant’s period of AWOL. The record contains no evidence of her attendance at drills with her reserve unit and the applicant provided none to support her statement. The Board found the applicant provide no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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 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 Department of Veterans Affairs 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) AR20190005300 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190001801 7 ABCMR Record of Proceedings (cont) AR20190001801 5