BOARD DATE: 3 February 2020 DOCKET NUMBER: AR20190011847 APPLICANT REQUESTS: Her bad conduct discharge (BCD) be upgraded to an honorable discharge. 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), dated 29 July 2019 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. 2. The applicant states she was court-martialed and separated from the service following the actions of her then-husband. She used the court-martial as a means of separating from her husband. Prior to the court-martial, she was a model Soldier and never experienced previous counseling for her behavior. She was involved in an abusive relationship that consisted of constant abuse and domination from her husband. After he assaulted her, she believed that taking responsibility for his actions was the only way she could be free from his abuse and detrimental behaviors. 3. The applicant enlisted in the Regular Army on 18 January 1977. She reenlisted in the Regular Army on or about 6 December 1984. 4. Before a special court-martial on or about 17 September 1988, at Headquarters, U.S. Army, Southern European Task Force and 5th Theater Army Area Command, the applicant was convicted on of the following offenses: * Charge II: Article 121 – Specification: Larceny of $33.18, on or about 28 May 1988, the property of another person * Charge III: Article 134 – Specification 1: Wrongfully endeavor to impede an investigation, on or about 31 May 1988, by wrongfully making a false statement Specification 2: Wrongfully and unlawfully subscribe under lawful oath false statements, on or about 31 May 1988 Specification 3: Wrongfully and unlawfully subscribe under lawful oath false statements, on or about 22 June 1988 5. The applicant was sentenced to reduction in rank/grade to private/E-1, forfeiture of $335.00 pay per month for three months, 90 days of confinement, and separation from service with a BCD. The convening authority approved the sentence as adjudged and except for that part of the sentence extending to the BCD, ordered the sentence executed. The record of trial was forwarded to the U.S. Army Court of Military Review for appellate review. 6. The U.S. Army Court of Military Review affirmed the findings and sentence in the applicant's case on 26 January 1990. The Court, in its Notice of Court-Martial Order Correction, ordered that to reflect the true proceedings at the applicant's trial, the words "and inducing another person to help her to falsely present matters in defense" be added at the end of the Charge III: Specification 1 "Wrongfully endeavor to impede and investigation on or about 31 May 1988, by wrongfully making a false statement." 7. Special Court-Martial Order Number 20, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 29 January 1991, amended Charge III: Specification1 by striking the words "and claiming in a false sworn statement dated 31 May 1988, that said her "husband had purchased the jewelry on 28 May 1988." The decision of the U.S. Army Court of Military Review as to Charge II and its specification, Specification 1 (amended), specifications 2 and 3 of Charge III and the sentence was affirmed; the finding of guilty as to the stricken language was set aside and that portion of the specification was dismissed. The sentence to a BCD, confinement for ninety days, forfeiture of $335.00 pay per month for three months, and reduction to the rank/grade of private/E-1, adjudged on 17 September 1989, as corrected by the U.S. Army Court of Military Review Notice of Court-Martial Order Correction, dated 26 January 1990, was affirmed. Article 71(c) having been complied with, the BCD was ordered duty executed. 8. The applicant was discharged on 29 April 1991. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 3. Her DD Form 214 shows her narrative reason for separation was "as a result of court-martial, other." She was discharged in the rank/grade of private/E-1 and her service was characterized as "bad conduct." 9. The applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) on 13 September 1991, which amended block 11 (Primary Specialty), block 12f (Foreign Service), block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), and block 14 (Military Education) on her DD Form 214. 10. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 11. The Board should consider the applicant's statement in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the applicant and all evidence, the Board determined there is insufficient evidence to grant relief. The Board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and found insufficient evidence of error, injustice, or inequity. The Board carefully considered the applicant’s assertion that she was court- martialed and separated from the service following the actions of her husband and that she used the court-martial as a means of separating from him. However, the Board found insufficient evidence to support her contentions as the record is void of and the applicant did not provide evidence which may have provided independent corroboration. The Board further found insufficient evidence of mitigating circumstances for the serious misconduct. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate. 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): A review of the applicant's record shows her DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 29 April 1991, is missing an important entry that affects her eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entry to item 18 (Remarks): * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE 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 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. b. 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. c. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. 3. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, Section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190011847 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20190011847 6 ABCMR Record of Proceedings (cont) AR20190011847 4