IN THE CASE OF:  BOARD DATE:  20 March 2020 DOCKET NUMBER:  AR20190015075 


APPLICANT REQUESTS:  Her under honorable conditions (general) 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 22 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 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, in effect, she was released 12 days after the plane crash atGander.  She believes injustice was done with regards to the plane crash, sherequested to see and speak with authorities and tried to make a report.  She wasstationed at Fort Campbell. Kentucky at the time of the incident.  She was wrongfullyand unlawfully discharged.  She did not know she could request an upgrade to herdischarge.

3.The applicant enlisted in the Regular Army on 25 September 1984.

4.The applicant was formally counseled by members of her chain of command on twoseparate occasions between March 1985 and May 1985, for failure to report to recallformation and for missing a mandatory company formation and emergency deploymentreadiness exercise.

5.The applicant received a civilian conviction on 7 July 1985 for driving whileintoxicated.
























6.The applicant accepted non-judicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice (UCMJ), on the following dates:•on 10 June 1985, failure to report for formation and missing two days of extraduty•on 30 October 1985, for being absent without leave (AWOL) from on or about 11October 85 through on or about 12 October 1985•on 7 November 1985, for failing to go at the time prescribed to her appointedplace of duty, on or about 25 October 19857.The applicant's immediate commander notified the applicant on 3 December 1985 ofhis intent to initiate separation actions against her under the provisions of ArmyRegulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 13, forunsatisfactory performance.  The commander cited the applicant having been late orabsent on numerous occasions and her inability to change her behavior.  The applicanthad been AWOL, received a civilian conviction for driving while intoxicated, and hadreceived an Article 15 for failure to report and malingering.8.After consulting with counsel on 4 December 1985, the applicant waivedconsideration of her case by a board of officers.  She acknowledged that she mayencounter substantial prejudice in civilian life if she received a general discharge.  Shedeclined to submit a statement in her own behalf.9.The applicant underwent a mental status evaluation on 11 December 1985.  Therelevant DA Form 3822-R (Report of Mental Status Evaluation) shows she had normalbehavior, was fully alert and oriented, and had clear thought process and normalthought content.  The evaluating physician determine she had the mental capacity tounderstand and participate in any administrative proceedings and she was cleared forany administrative action deemed appropriate by her Command10.The applicant's commander formally recommended her separation from service,under the provisions of Army Regulation 635-200, Chapter 13.  The separation authorityapproved the recommended action on 19 December 1985, and directed the applicant’sservice be characterized as under honorable conditions.11.The applicant was discharged on 26 December 1985.  Her DD Form 214(Certificate of Release or Discharge from Active Duty) confirms she was dischargedunder the provisions of Army Regulation 635-200, Chapter 13, by reason ofunsatisfactory performance.  Her service was characterized as under honorableconditions.12.The Board should consider the applicant's statement in accordance with thepublished 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 dischargeupgrade requests.  The Board considered the applicant’s statement, her record ofservice, the frequency and nature of her misconduct, a civilian conviction, her mentalstatus evaluation and separation packet and the reason for her separation.  The Boardfound insufficient evidence of in-service mitigation to overcome the misconduct and theapplicant provided no evidence of post-service achievements or letters of reference insupport of a clemency determination.  Based on a preponderance of evidence, theBoard determined that the character of service the applicant received upon separationwas not in error or unjust.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX 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. 



X 


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.  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 requirements and procedures 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.  Chapter 13 provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions. 
 
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//