ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings IN THE CASE OF: BOARD DATE: 8 August 2019 DOCKET NUMBER: AR20190005891 APPLICANT REQUESTS: The applicant requests an upgrade of her under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 would like to upgrade her discharge to general, under honorable conditions. The years have passed and she looks back at all the mistakes she made in her life. The Army was one that she did not do right. She could have made it a career, and she is ashamed she did not correct it. She was told that she could apply for an upgrade when she was released. The applicant is sorry that she waited so long. Her father was in the Navy and her nephew served in the Marine Corps. She was a good Soldier and was proud to have served. She just made some bad choices. She did not want to die without having tried to upgrade her discharge. She wants to correct her discharge and make her children and grandchildren proud. 3. On 6 June 1979, the applicant enlisted in the Regular Army for a period of 3 years. 4. A review of the applicant’s record shows on/from: * 21 November 1979, she received non-judicial punishment (NJP) for disobeying a lawful order and failing to be at her appointed place of duty * 30 July 1980, she received NJP for being absent without leave (AWOL) from 3 to 13 July 1980 * 18 August to 13 October 1980, she was reported AWOL and dropped from the Army’s rolls 5. On 17 October 1980, court-martial charges were preferred against the applicant for being AWOL from on or about 18 August to 14 October 1980. 6. A mental status evaluation psychiatrically cleared her for administrative separation action. She did not desire to undergo a medical examination. 7. On 20 October 1980, she voluntarily requested a discharge for the good of the service in-lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 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 a discharge. a. She elected to submit statements in her own behalf and stated in pertinent part, she did not get to work in S-4 or the supply room, because the section sergeant and the S-4 officer had her working down in the motor pool 98 percent of the time working on jeeps and trucks. There were hardly any women in the motor pool which resulted in her being constantly harassed. Because of the harassment and not being allowed to work in her military occupational specialty, she wanted out of the Army. b. The applicant acknowledged that she understood the possible effects of an under other than honorable conditions discharge and that, as a result of the issuance of such a discharge, she would be deprived of many or all Army benefits. She also acknowledged that she may be ineligible for many or all benefits administered by the Veterans Administration, and that she may be deprived of her rights and benefits as a veteran under both Federal and State law. c. Her chain of command recommended approval of her discharge request with an under other than honorable conditions character of service. d. The separation authority approved the applicant’s discharge request for the good of the service with an under other than honorable conditions character of service. 8. On 26 February 1981, the applicant was discharged accordingly. She completed 1 year, 6 months and 15 days of net active service. She had lost time from 3 to 12 July 1980 and 18 August to 13 October 1980. The applicant was not awarded a personal decoration. 9. The record contains no indication of procedural or other errors that would tend to have jeopardized the applicant’s rights. 10. Army Regulation 635-200 states that, a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service 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. 11. In reaching its determination, the Board should consider the applicant's petition, her service record, and her statements in light of the published Department of Defense guidance on equity, injustice, or clemency. 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 service record, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. The Board found insufficient in-service mitigating factors for her absences and the applicant provided no evidence of post-service achievements of letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that he character of service the applicant received at discharge 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. X CHAIRPERSON 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 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. c. 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. d. An under other than honorable conditions discharge is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct. 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. 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.