ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  30 January 2020 DOCKET NUMBER:  AR20190009631 


APPLICANT REQUESTS:  In effect, her under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record Under the Provisionsof Title 10, U.S. Code, Section 1552), dated 13 June 2019

.three third-party letters of support



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 MilitaryRecords (ABCMR) conducted a substantive review of this case and determined it is inthe interest of justice to excuse the applicant's failure to timely file.

2.The applicant states:

a.She originally enlisted on 5 November 1986 for 3 years.  She was scheduled tobe discharged on 4 November 1989 but reenlisted in September 1989 and was awarded a medal a few weeks later.  She received an honorable discharge at the time of her immediate reenlistment but was later discharged for the good of service . in lieu of trial by court.martial.   

b.She never have any discipline problems during her service in the Army.  Herdischarge was a misunderstanding and miscommunication with her commander.  Her first period of service was honorable and should state such.  She requested an "AB7 Service Verification letter" prior to applying for employment in 2017; however, it states that both her enlistment discharges were under "other than honorable conditions."   

3.The applicant enlisted in the Regular Army on 5 November 1986 and had animmediate reenlistment on 6 September 1989.

4.The applicant was hospitalized on 14 February 1991, where she delivered a child.She was released from the hospital three days later and was returned to a duty status.The applicant has not provided and the record does not contain any medicaldocumentation related to the birth or any alleged medical or dependency problems.

5.The applicant was reported as absent without leave (AWOL) from on or about9 April 1991 through her voluntary return on or about 18 July 1991.

6.Court-martial charges were preferred against the applicant on 30 October 1991 forviolations of the Uniform Code of Military Justice (UCMJ).  The relevant DD Form 458(Charge Sheet) shows she was charged with being AWOL from on or about 9 April1991 through on or about 19 July 1991.

7.The applicant consulted with legal counsel on 30 October 1991.

a.She was advised of the basis for the contemplated trial by court-martial, themaximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him.   

b.Subsequent to receiving legal counsel, the applicant voluntarily requesteddischarge 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 advised she could submit any statements she desired in her own behalf.Her request for discharge indicates she declined to submit a statement. 

8.The applicant was placed in an excess leave status on 30 October 1991.

9.The separation authority approved the applicant's request for discharge on7 November 1991, under the provisions of Army Regulation 635-200, Chapter 10, in lieuof trial by court-martial, and directed that the applicant be reduced to the lowest enlistedgrade and discharged UOTHC.

10.The applicant was discharged on 2 December 1991.  The DD Form 214 she wasissued shows she was discharged under the provisions of Army Regulation 635-200,
Chapter 10, for the good of the service, and her service was characterized as UOTHC. Her DD Form 214 further shows: 

.she was discharged in the rank/grade of private/E-1

.she was credited with four years, nine months, and 18 days of creditable activeduty service

.she was awarded the Army Achievement Medal and Army Good Conduct Medal

.she had lost time this period from 910409.910717 [100 days]

.Block 18 (Remarks) includes the notations:



.Continuous Honorable Active Service From 861105 to 890906

.Immediate Reenlistments this Period: 861105 to 890906

.Excess Leave (Creditable for all Purposes Except Pay and Allowances)34 days 911030-911202



11.The applicant was charged due to the commission of an offense punishable underthe UCMJ with a punitive discharge.  Subsequent to being charged, he consulted withcounsel and requested discharge under the provisions of Army Regulation 635-200,Chapter 10.  Such discharges are voluntary requests for discharge in lieu of trial bycourt-martial.

12.The applicant has not provided and the record does not contain any medicaldocumentation of a complications following the birth of her son or any requests orattempts to receive assistance through her command.

13.The statements of support from two family members and a minister describe theapplicant as a warm and caring person.

a.Her mother states that the applicant had come home to Columbia for a visit priorto her husband's deployment to Kuwait, and on the day he was to leave, she went into labor.  The baby was born early and had complications that required the applicant to stay with the baby.  The applicant talked to her commander several times until the police came by with some papers and the applicant departed the next day.  During that time, the applicant's kids stayed with her sister Jxxxxx when she had to go to Kentucky. We found out later that her sister was on drugs and was calling the unit there because she wanted more money.  The applicant's husband decided to bring the kids back to Columbia to live with her.  She worked two jobs and had to find sitters to keep these small children.  She even had a nurse coming in to check on the baby because he had a special bag on his stomach. 

b.Her sister states her sister entered the military the same year she graduated highschool.  Her sister was always proud of the jobs she had in the military.  She always talked about being able to serve her First Sergeant and Company Commander.  She 
remembers the applicant being upset that she would have to get out of the military because her son was born prematurely.  He had a colostomy bag and she was not able to find daycare to keep him.  Our Aunt Jxxxx had agreed to keep her children but they soon found out that our aunt was on drugs and was using the money her sister and husband were sending for her aunt's bad habit.  The applicant never talked about her discharge, until recently.  She was shocked to know that her sister had received an "Other than Honorable."  She hopes this can be changed; her sister so deserves it.  She is a good person and a very good mother.  She has always been kind to others and serves as a great example to the females in their family. 

14.The Board should consider the applicant's petition, her service record, and herstatements 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 dischargeupgrade requests.  The Board considered the applicant’s statement, her record ofservice, the frequency and nature of her misconduct, the charges against her, herrequest for discharge and the reason for his separation.  The Board considered theapplicant service awards, her pregnancy and statements of support provided by theapplicant and found sufficient evidence to make a clemency determination.  Based on apreponderance of evidence, the Board determined that the character of service theapplicant received upon separation should be upgraded as a matter of clemency.  TheBoard concurs with the correction stated in the Administrative Note(s) below.2.After reviewing the application and all supporting documents, the Board found thatrelief was warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : GRANT FULL RELIEF 

:XXX :XXX GRANT PARTIAL RELIEF 

: : GRANT FORMAL HEARING 

: :XXX : : : : DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

1.The Board determined the evidence presented is sufficient to warrant arecommendation for partial relief.  As a result, in addition to the correction stated in theAdministrative Note(s) that follow, the Board recommends that all Department of theArmy records of the individual concerned be corrected by amending the DD Form 214for the period of service ending 2 December 1991 to reflect in item 24 (Character ofService) – Under Honorable Conditions (General)” vice “Under other than honorableconditions.”

2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief.  As a result, the Board recommends denial of so much ofthe application that pertains to an upgrade to Honorable.




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 his DD Form 214, for the period ending 2 December 1991, is missing important entry that affect her eligibility for post-service benefits.  As a result, amend item 18 of the DD Form 214 by adding the entry "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE." 







REFERENCES: 

1.Title 10, USC, Section 1552(b), provides that applications for correction of militaryrecords 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 timelyfile within the three-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.The regulation provides that the ABCMR begins its consideration of each case with thepresumption of administrative regularity.  The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 635-200 sets forth the basic authority for the separation of enlistedpersonnel.  It provides:

a.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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.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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 

c.Chapter 10 provides that a member who has committed an offense or offensesfor 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 an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 
 
4.  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. 
 
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