IN THE CASE OF: BOARD DATE: 6 April 2020 DOCKET NUMBER: AR20190015605 APPLICANT REQUESTS: 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 Provisions of Title 10, U.S. Code, Section 1552), dated 12 September 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 given a pardon for the court-martial she was involved in by the governor of the State of Illinois; however, she was never given a new, corrected DD Form 214 that shows she was honorably discharged. 3. The applicant enlisted in the Illinois Army National Guard (ILARNG) on 14 June 2001, with prior service and in the rank/grade of private first class/E-3. 4. The applicant entered active duty on 13 March 2002. 5. A DA Form 4187 (Personnel Action), dated 21 June 2002, shows the applicant's duty status was changed from convalescent leave to absence without leave (AWOL), effective 20 June 2002. 6. A DA Form 4187 (Personnel Action), dated 20 July 2002, shows the applicant's duty status was changed from AWOL to dropped from the rolls (DFR), effective 20 July 2002. 7. The applicant was discharged from the ARNG on 20 July 2002 and was reassigned in accordance with her obligated service to the Reserve of the Army. Accordingly, her Reserve Component affiliation changed from ARNG to U.S. Army Reserve (USAR). Her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows: * she was separated under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) after being AWOL from "EIT" [presumably Enlisted Initial Training] * she was transferred to the USAR Control Group (Reinforcement) * her service was uncharacterized 8. A DD Form 616 (Report of Return of Absentee) shows the applicant was AWOL from on or about 20 June 2002 until her return to military control on or about 26 February 2003. 9. A DA Form 4187 (Personnel Action), dated 4 March 2003, shows the applicant's return to military control resulted from her civilian apprehension. 10. Court-martial charges were preferred against the applicant on 6 March 2003, for violations 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 20 June 2002 until on or about 26 February 2003. 11. The applicant consulted with legal counsel on 6 March 2003 and submitted an Admission of AWOL for Administrative Purposes. She acknowledged that her defense counsel had advised her that at the time the government had not received the necessary documents and/or records to obtain a conviction by court-martial. She knowingly and willingly admitted to having been AWOL from on or about 20 June 2002 to on or about 26 February 2003. 12. The applicant, after further consulting with legal counsel, submitted a Request for Discharge in Lieu of Trial by Court-Martial on 6 March 2003. a. She was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and the procedures and rights that were available to her. b. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge under the provision of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10, for the good of the service – in lieu of trial by court-martial. In her request for discharge, she acknowledged hers 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 his 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 but waived this right. 13. The applicant requested and was granted excess leave effective 12 March 2003. 14. The applicant's unit commander forwarded her request for discharge, on 22 April 2003, and recommended approval of her request for discharge. He recommended she be discharged UOTHC. 15. The separation authority approved the applicant's request for discharge on 28 April 2003, under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, and directed that the applicant be reduced to the lowest enlisted grade and discharged UOTHC. 16. The applicant was discharged on 8 May 2003. The DD Form 214 she was issued shows she was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, and her service characterization was UOTHC. Her DD Form 214 further shows she was discharged in the rank/grade of private/E-1. 17. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to being charged, he consulted with counsel and requested discharge under the provisions of Army Regulation 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. 18. The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition. 19. The available record contains no evidence of a court-martial or a pardon by the Illinois Governor. 20. The Board may consider the applicant's petition, her service record, and her statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants 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, the preferral of charges, her request for discharge and the reason for her separation. The Board found insufficient evidence of in-service mitigating factors for the misconduct and the applicant provided no evidence of post-service achievements or letters of support to weigh 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. 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. 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 15-185 (ABCMR) prescribes the policies and procedures for correction 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 the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: a. 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. 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 offenses for 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015605 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS Record of Proceedings 1