ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 October 2019 DOCKET NUMBER: AR20190006712 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 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 25 March 2019, with 16-page legal brief * DA Form 2442 (Certificate of Achievement), dated 22 April 1989 * DA Forms 4980-18 (Army Achievement Medal (AAM) Certificate), dated 3 May 1989, 7 March 1990, and 22 May 1991 * Certificate of Achievement, dated 4 December 1991 * DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate), dated 23 August 1993 * AAM Certificate, dated 10 August 1995 * DA Forms 2166-7 (Non-Commissioned Officer (NCO) Evaluation Report (NCOER)), covering the years 1992 through 1999 * General Officer Memorandum of Reprimand (GOMOR), dated 29 November 2000 and 27 February 2001 * Memorandum, undated, subject: Separation Action Under the Provisions of AR [Army Regulation] 635-200 [Personnel Separations – Enlisted Personnel], Chapter 14-12 b/c, [Applicant] * Memorandum, undated, subject: Separation Under the Provisions of AR 635-200, Chapter 14-12 b/c, [Applicant] * Memorandum, dated 12 October 2001, subject: Request for Discharge in Lieu of Trial by Court-Martial, [Applicant], with separation authority approval * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 16 November 2001 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. 1 2. Counsel states: a. The applicant served 12 years and 6 months in the Army, achieving the rank/grade of sergeant first class/E-7. In that time, the applicant garnered numerous awards for her exemplary leadership, physical fitness, and outstanding service. b. On 16 April 2000, the applicant was apprehended in Petersburg, VA, for driving with a blood alcohol content of .15%. This incident followed the injury of both knees. On 28 October 2000, the applicant was apprehended for another driving under the influence (DUI) charge following a car accident in Petersburg, VA. After these events, she began the Addictions Rehabilitation Department Program in Norfolk, VA, on 20 November 2000, while serving as Platoon Sergeant. On 29 November 2000, she received a notification of administrative reprimand for her two DUI offenses. c. After completing the Addictions Rehabilitation Program on 15 December 2000, the applicant’s chain of command started chapter paperwork. She was told that under Chapter 14-12(b)(c), she would be given a general discharge and still maintain her E-7 grade. On 23 April 2001, she received notification of administrative separation. In lieu of a court-martial, she requested a discharge on 12 October 2001. Her discharge was approved on 29 October 2001. She was separated on 16 November 2001, with a characterization of UOTHC. d. Since her departure from the Army, she has completed her Bachelor of Arts Degree in Organizational Management at Ashford University, in addition to holding various managerial positions at retail stores. 3. The applicant enlisted in the Regular Army on 12 January 1989. She reenlisted on 31 August 1993, 25 May 1994, and again on 15 December 1999. 4. The applicant received a GOMOR on 29 November 2000. The reprimand stated in pertinent part: a. The applicant was apprehended on 16 April 2000, for DUI in Petersburg, VA. She was administered a chemical breath test, which indicated her blood alcohol content was .15%, in violation of VA State law. b. The applicant was involved in a car accident on 28 October 2000, while driving in Petersburg, VA. She fled the scene of the incident. She was apprehended again for DUI and administered a chemical breath test that indicated her blood alcohol content was .17%, in violation of VA State law. c. The imposing general officer indicated he was imposing the reprimand as an administrative action and not punishment under the Uniform Code of Military Justice (UCMJ), and that he intended to direct the filing of the reprimand in the applicant's Official Military Personnel File (OMPF). 5. The applicant received a GOMOR on 27 February 2001. The reprimand stated in pertinent part: a. The applicant knowingly used her Government credit card while on temporary duty to Norfolk, VA, when her orders did not authorize usage other than for travel to and from Norfolk, VA. b. The imposing general officer indicated he was imposing the reprimand as an administrative action and not punishment under the UCMJ, and that he intended to recommend the reprimand be placed in the applicant's OMPF. 6. The applicant's immediate commander notified the applicant, on or about 23 April 2001, of her intent to initiate separation actions against the applicant under the provisions of Army Regulation 635-200, paragraph 14-12b/c, for misconduct – commission of a serious offense(s). The applicant acknowledged receipt of the notification memorandum on 23 April 2001. 7. The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 14-12b/c, by reason of misconduct. 8. Court-martial charges were preferred against the applicant on 20 August 2001, for violations of the UCMJ. Her DD Form 458 (Charge Sheet) shows she was charged with: * wrongful use of cocaine, between on or about 28 July and 10 August 2000 * wrongful use of cocaine, between on or about 1 June and 30 June 2001 * wrongful use of methylenedioxymethamphetamine (MDMA) [commonly known as ecstasy], between on or about 1 December and 31 January 2001 9. The applicant consulted with counsel on 12 October 2001 and 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 UOTHC discharge, and the procedures and rights that were available to her. Subsequent to receiving legal counsel, she voluntarily requested discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of the service – in lieu of trial by court-martial. a. 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. b. 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 Department of Veterans Affairs, 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 election shows she intended to submit statements; however, such statements are not available for review in this case. 10. The separation authority approved the applicant's request for discharge on 29 October 2001, under the provisions of Army Regulation 635-200, Chapter 10, and directed the applicant's reduction to the lowest enlisted grade and discharge with an UOTHC characterization of service. 11. The applicant was discharged on 16 November 2001. Her DD Form 214 confirms she was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. She was discharged in the lowest enlisted grade and her service was characterized as UOTHC. 12. 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. 13. The applicant provides Certificates of Achievement and AAM and ARCOM award certificates that show she was, on multiple occasions, commended for her outstanding achievements and service. 14. The Board should consider the applicant's overall military service and statement 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 provided through counsel, her record of service including deployed service, the frequency and nature of her misconduct during her last enlistment, the reason for her separation, and whether to apply clemency. The Board found sufficient evidence of mitigating factors, in particular her 10-year history of above average performance as a Soldier and the fact that she completed a college degree after her separation, to conclude that the characterization of her service was too harsh. 2. The Board agreed that her service during her final enlistment was not fully honorable, but as a matter of clemency the facts of this case support a recommendation to upgrade the characterization of her service to under honorable conditions (general). 3. The Board noted the only basis for her reduction to pay grade E-1 was the characterization of her service. As a result of an upgraded characterization of service, the record should also be corrected to show she held the rank/grade of sergeant first class/E-7 at the time of her discharge. The Board concurred with the administrative correction addressed in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, in addition to the administrative correction addressed in Administrative Note(s) below, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 for the period ending 16 November 2001 to show her service was characterized as under honorable conditions (general) and to show she held the rank/grade of sergeant first class/E-7 with an effective date of pay grade of 1 April 1997. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of service to honorable. 12/20/2019 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): A review of the applicant's record shows her DD Form 214, for the period ending 19 November 2001, is missing important entries that affect her eligibility for post-service benefits. As a result, add to the DD Form 214 the following entry in item 18 (Remarks): * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 890112 UNTIL 991214 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 1-13 provides that when a soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Chapter 6. b. Paragraph 3-7a provides that 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. c. Paragraph 3-7b provides that 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. Chapter 10 provides, in pertinent part, that a member who has committed an offense or offenses for 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 a general or an honorable discharge is authorized, a UOTHC discharge is normally considered appropriate. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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//