ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 20 August 2019 DOCKET NUMBER: AR20190007617 APPLICANT REQUESTS: * Upgrade her under other than honorable conditions discharge to honorable * Permission to personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant's letter to the Department of Veterans Affairs (VA) * Death certificate * Army Review Boards Agency (ARBA) letter FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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 would never have left her unit in an absent without leave (AWOL) status if her sergeant had not tried to take advantage of her. She was young and afraid, and did not know to whom she could turn for help. She also was unaware there were ways to request an upgraded discharge. No one ever gave her any choices when she returned to military control; her only option was to leave. She states her discharge has been weighing on her and has been a blemish on her life; she feels pain about it every day. 3. The applicant provides a copy of a death certificate and a letter from ARBA. The ARBA letter responds to the applicant's correspondence to the Secretary of Defense and encourages her to submit an application to the ABCMR. The applicant also provides a letter, dated 16 January 2019 and addressed to the VA, in which she essentially describes her military service and her desire to upgrade her character of service. She writes, in effect: a. She served in the Army during the 1980's and was stationed at Fort Dix, NJ. At the time, she was motivated and hardworking; because she was hardworking, everyone wanted her in their group. The sergeant major wanted her to do all of his details. They made her a squad leader and asked her to be the platoon guide. Prior to entering active duty, she worked with an Army recruiter; this was because of her strong belief in the Army. b. She notes she entered active duty as a private first class (PFC)/E-3, and she was well on her way to another promotion. Everything was going well until her sergeant, Sergeant (SGT) __, tried to touch her. When this happened, she had no idea what to do; he was a big, strong man who was in charge of her and her career. She became extremely frightened so she ran away. c. She believes that, because she was ashamed of her reactions, she started taking jobs to show she had no fear; she first became a bridge painter, then a sheet metal worker who hung off the side of skyscrapers doing welding and other tasks. In the latter role, she worked on the United Nations building, and both the old and new World Trade Centers. Despite all that she accomplished, she was unable to erase what had happened when she was in the Army; it has hung over her life like a dark cloud. d. She did not know she needed to upgrade her character of service within a certain amount of time; nonetheless, she is willing to do whatever it takes to make this change. 4. The applicant's service records show: a. She enlisted into the Regular Army on 15 June 1983 for a 3-year term; she was 20 years old. b. On 28 June 1983, the U.S. Army Reception Station (USARECSTA) at Fort Dix reported the applicant as AWOL; she returned to military control, effective 28 July 1982. On 1 August 1982, she accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 28 June until 28 July 1983 (30 days). She was reassigned to a unit for basic combat training (BCT), and arrived on 2 August 1983. c. On 4 September 1983, her BCT unit reported her AWOL, and, effective 4 October 1983, dropped her from Army rolls. d. The applicant's service record includes three letters of support, written in October 1983; one is addressed to an Army lieutenant colonel. Two of the letters, respectively from one of the applicant's high school teachers and from the applicant's pastor, described the applicant as a talented artist and a good person. The third letter, written by the applicant's friend, described the events surrounding the applicant's absence on 4 September 1983; she wrote, in effect: (1) She had known the applicant for many years, and they have been friends through good times and bad. On 4 September 1983, the writer went to visit the applicant at Fort Dix. The writer indicated she normally left Fort Dix at 8 p.m., but on that night the Soldiers were allowed to stay up until midnight because the next day was a holiday. (2) Around 10 p.m., the writer was told to leave; the applicant and another Soldier escorted her to the bus stop. She sat at the bus stop for more than an hour when a car pulled up and a woman in the car asked what bus the writer was waiting for; when she responded it was the bus to New York, the woman told her there would not be another bus until the morning. (3) The writer panicked; she went back to the applicant's barracks where one of the sergeants tried to help her and to calm her down, but only the applicant could help. The writer states the applicant then put her career on the line by bringing her back home to New York. The applicant also helped the writer obtain medical treatment and took care of the writer's daughter (the writer states she suffered a severe depression after the foregoing incident at Fort Dix). Included with the writer's letter were copies of doctor's notes indicating the writer was suffering from severe depression and anxiety. e. On 17 April 1984, the applicant surrendered herself to military authority at Fort Hamilton, NY; orders reassigned her to the U.S. Army Personnel Control Facility (PCF) at Fort DIx, effective 17 April 1984. On 20 April 1984, during an interview with the PCF staff, the applicant stated she went AWOL from Fort Dix because she needed to take her best friend home to New York; her friend had had a nervous breakdown. She asserted her friend had been left alone at Doughboy Field on Fort Dix and was being harassed. The PCF staff wrote the following comments: * The applicant's friend was left at the bus stop, not Doughboy Field; the friend came back to the company area from the bus stop and the applicant stayed with the friend all night; the intent was to put her on the bus in the morning * because the friend was very nervous, she asked the applicant to take her back home to New York * In New York, the applicant took her friend for medical help, but all that was concluded in October 1983; in the meantime, the applicant became pregnant, after which she returned to military control * The leadership at the applicant's unit essentially confirmed events; the commander could not let a civilian stay in the barracks overnight; the applicant's unit indicated there were no other charges pending and they were not seeking to have her return f. On 20 April 1984, the applicant's PCF commander preferred court-martial charges against for her AWOL from 4 September 1983 until 17 April 1984 (226 days). On that same date, after consulting with counsel, the applicant voluntarily requested discharge in-lieu of trial by court-martial under chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). In her request, she stated no one subjected her to coercion and counsel had advised her of the implications of her request; she further acknowledged she was guilty of the charges. She elected not to submit a statement in her own behalf. g. On 2 May 1984, the separation authority approved the applicant's request, and directed her under other than honorable conditions discharge; on 18 May 1984, the applicant was discharged accordingly. Her DD Form 214 shows she completed 2 months and 21 days of her 3-year enlistment contract, with two periods of lost time; she had no awards or decorations. 5. 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. 6. During her active duty service, the applicant was AWOL for more than 30 days; the Manual for Courts-Martial at the time showed the maximum punishment for this offense included a punitive discharge. Soldiers charged with UCMJ violations that carried a punitive discharge as a punishment could request separation under chapter 10, AR 635- 200; such requests were voluntary and offered in-lieu of trial by court-martial. 7. The applicant essentially expresses regret for her misconduct and alleges she went AWOL after a sergeant inappropriately touched her. The evidence of record indicates she previously claimed she left her unit to bring her friend home from Fort Dix to New York because her friend was having a nervous breakdown. In reaching its determination, the Board can consider the applicant's petition, her service record, and her statements in light of the published 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, her absence from the reception station, her stated reasons for her long-term absence, the reason for her separation and whether to apply clemency. The Board found insufficient evidence of in-service mitigation for her absences; the applicant stated her remorse and her activities post- service, but provided no additional evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined 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 : 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 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. Consulting counsel was to sign the request as a witness. 3. The Manual for Courts-Martial, United States, 1984, Maximum Punishment Chart showed the maximum punishment for violations of Article 86 (AWOL for more than 30 days) included a bad conduct discharge. 4. 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. 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. 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. 5. Army Regulation 15-185 (ABCMR) 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. ABCMR Record of Proceedings (cont) AR20190007617 7 1