IN THE CASE OF: BOARD DATE: 15 November 2019 DOCKET NUMBER: AR20190007329 APPLICANT REQUESTS: The applicant requests: * upgrade of her general under honorable conditions discharge to an honorable discharge * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record). FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013393 on 25 March 2014. 2. The applicant states she is furthering her education and in the process of completing her MBA (Master of Business Administration). She has come a long way since the naïve 18 year old in the service. She has a family and in need of tuition assistance. Her son wants to also join the service but is hesitant due to her unfortunate circumstance. She further explains: * reasons why she is unable to provide any evidence * problems between her and a staff sergeant in her organization and the behind closed doors harassment she endured * inaccuracies in statements made against her * requests made by her to be reassigned to an overseas assignment or another installation in order to remove herself from the harassment * why she deserves her educational benefits 3. On 5 July 2000, at the age of 17 years old, the applicant enlisted in the Regular Army for a term of 3 years. 4. Her record contains DA Forms 4856 (Developmental Counseling Form) to show that the applicant was counseled on six occasions between the period 2 May 2002 and 30 May 2002 for, failing to follow sick call procedures, violating the brigade pass and leave policy, failing to be at her appointed place of duty, failing to obey a lawful order, and her performance during the month of May 2002. 5. She accepted nonjudicial punishment (NJP) on: * 21 February 2002 for failing to go at the time prescribed to her appointed place of duty, being disrespectful in language toward a superior noncommissioned officer (NCO), and being derelict in the performance of her duties; vacated on 25 May 2002 for going from her appointed place of duty: night shift command post guard * 10 June 2002 for going from her appointed place of duty, failing to go to her appointed place of duty, willfully disobeying a lawful order from an NCO, and on two occasions, failing to obey a lawful order from a commissioned officer 6. In connection with her administrative separation proceedings, the applicant underwent a medical examination and a mental status evaluation; both cleared her for separation. 7. On 12 July 2002, the applicant’s immediate commander notified the applicant that she was initiating separation actions against her under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, paragraph 14-12b (a pattern of misconduct). 8. The applicant acknowledged she had been notified of the pending separation action against her and she had been advised by her consulting counsel of the basis for the contemplated action. She elected not to submit statements in her own behalf. 9. The case was legally reviewed and the chain of command recommended approval of the separation. On 16 July 2002, the appropriate separation authority approved the recommendation for separation and directed that the applicant be issued a General Discharge Certificate. 10. On 30 July 2002, the applicant was discharged accordingly. Her service was characterized as under honorable conditions (general). She completed 2 years and 26 days of net active service this period. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was awarded or authorized the Army Service Ribbon. 11. On 29 May 2013, the Army Discharge Review Board denied her petition to upgrade her discharge, determining that her discharge was proper and equitable. 12. On 25 March 2014, the ABCMR denied her petition to upgrade her discharge, determining the evidence presented did not demonstrate the existence of a probable error or injustice. 13. The applicant states she has a family and she is in need of tuition assistance. Her son wants to also join the service but is hesitant due to her unfortunate circumstance. She further explains the harassment she faced from a SSG in her organization while she was in the service. Her record shows the applicant enlisted at the age of 17 years old, she accepted two NJPs, and she was counseled on six occasions for her misconduct. She served 2 years and 26 days of her 3 years contractual obligation. 14. In regards to the applicant's request for a personal appearance, Army Regulation 15-185, states an applicant is not entitled to a hearing before the Board; however, the request for a hearing may be authorized by a panel of the Board or by the Director of ABCMR. 15. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 16. AR 635-200, Chapter 14 (Misconduct), paragraph 14-12b, was a separation for a pattern of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for discharges under Chapter 14. 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. 17. The applicant requests an upgrade so that she may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant's petition and her service record in light of the published DOD 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 record of service, the frequency and nature of her misconduct and the reason for her separation. The Board considered her statement regarding her need for tuition assist and the absence of additional evidence to support her stated claims. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the applicant provided 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. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 3. 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 : : : 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. REFERENCES: 1. Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. 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. a. 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. b. Chapter 14 of the regulation dealt with separation for various types of misconduct. The issuance of a discharge under other than honorable conditions (UOTHC) was normally considered appropriate for separations under the provisions of chapter 14. Paragraph 14-12b, a pattern of misconduct, provided for the separation of a Soldier due to discreditable involvement with civil or military authorities and conduct prejudicial to good order and. discipline. Discreditable conduct and conduct prejudicial to good order and discipline includes conduct violative of the accepted standards of personal conduct found in the Uniform Code of Military Justice, Army regulations, the civil law, and time-honored customs and traditions of the Army. The issuance of a discharge under other than honorable conditions was normally considered appropriate for discharges under Chapter 14. 2. 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 regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. a. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. b. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190007329 6 ABCMR Record of Proceedings (cont) AR20190007329 1