BOARD DATE: 13 August 2020 DOCKET NUMBER: AR20200000272 APPLICANT REQUESTS: The applicant requests an upgrade of her under other than honorable conditions (UOTHC) discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 submitted a DD Form 149 and a personal statement: a. In her DD Form 149 she states her discharge was improper and inequitable. She would like her discharge upgraded so that her only daughter will be able to lay her at rest someday. This incident never happened. She was coerced into making a statement because of fear. She was terrified and scared but she did not steal anything or anyone?s money. This is not true and she needs to fight and defend herself and her character after 24 years. She has lived in agony for these 24 years and she is begging for this injustice to be corrected. b. In her personal statement she states on that September 1985, walking out the reception area with just her records and her broken heart to a career, which ended because she was coerced into making a statement that was absolutely not true at all. She was a young Soldier who was scared for her life. She did not even do a thing. She was falsely accused of stealing $300.00 from her Soldier?s girlfriend and it was the day she stopped living. All she remembers is not having her family, friends or anyone with her and her life interrupted with her life ending career. She does not know how she made it in life with this stain but she has. Everyone tells her to stand up for herself and fight so here she is fighting at 61 years old to restore some normalcy in her life for her one adult child. She can finally say she fought this fight and finally did not give up. 3. On 28 May 1980, the applicant enlisted in the Regular Army for a term of 4 years, at the age of 21 years old. 4. After completing initial entry training and a stateside assignment, on 17 September 1982, the applicant was assigned overseas to Germany. 5. Her record contains DA Forms 2823 (Sworn Statement), which show the applicant was the subject of an investigation for larceny of $330.00 from another Soldier, located in the Soldier?s barracks room. The military police conducted the investigation and questioned Soldiers regarding the larceny on: * 22 December 1984, Specialist (SPC) B_ W_, the victim in the case, provided a statement accusing the applicant of taking $330.00 from her wallet * 26 December 1984 and 28 December 1984, the applicant provided sworn statements denying the accusations (the record is void of the statement provided on 28 December 1984) * 28 December 1984, Private First Class (PFC) K_ R_ provided a statement regarding how the victim obtained the $330.00 from the post exchange and the events that took place on the day the victim claimed her money was missing * 28 December 1984, PFC A_ B_ provided a statement; however, the record is void of the statement * 29 January 1985, the applicant provided a sworn statement admitting to taking the money out of the SPC B_ W_ wallet 6. On 31 January 1985, she reenlisted for a term of 3 years, at the age of 26 years old. 7. After her reenlistment, the investigation continued: a. On 1 February 1985 (year, ?1984? is inaccurate on the form), Technical Sergeant (TSGT) D_ A_ made a sworn statement stating she was a witness to the polygraph examination given to the applicant at the Criminal Investigation Division office. During the examination, she listened from an outer office by microphone and she heard the applicant admit to a larceny of $330.00. The applicant admitted that she took the money from a billfold belonging to Specialist (SPC) W_ sometime during the week before Christmas 1984. She had taken the money three or more times but did not explain why or for what purpose. b. On 1 February 1985, military police investigator (MPI) J_ S_ submitted a sworn statement stating that a Judge Advocate General office related to him that based upon the information contained in the case there was sufficient evidence to cite the applicant with larceny of private property. c. A military police report, dated 1 February 1985, shows the applicant was cited for Article 121, under Uniform Code of Military Justice (UCMJ) –– Larceny of Private Property and Article 134, UCMJ –– False Swearing. The report provided details of the investigation. All other potential suspects denied any involvement in the missing funds. The victim stated the applicant was the only person who had the opportunity to take the $330.00. It indicated that the applicant consented to a polygraph test in which she failed. 8. The applicant’s letter to Representative T_ C_, subject: Request for Assistance, dated 12 February 1985, stated she was writing in regards to an incident that had caused her great alarm and concern. She explained how she was accused of taking $330.00 in her Battery. She had not entered Specialist W_?s room but once prior to her reporting that the money had been taken. She explains how the police investigator badgered her into confessing to the larceny. She was innocent of the offense. Representative T_ C_ responded in which he states, in pertinent part, while he was certainly sympathetic to the circumstance described in her letter, his office did not have any authority to intervene in matters pending before court, including military courts. 9. On 25 March 1985, charges were preferred against the applicant for one specification each of: * stealing U.S. currency, of a value of about $330.00, the property of SPC B_ W_ * wrongfully and unlawfully subscribing under lawful oath a false statement: I did not take her money, which statement she did not then believe 10. On 3 July 1985, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations – Enlisted Personnel), chapter 10. She consulted with legal counsel and was advised of the basis for the trial by court-martial, her available rights and the basis for voluntarily requesting discharge under the provision of AR 635- 200, chapter 10, and she elected not to submit a statement on her own behalf. 11. By memorandum, dated 18 June 1985 and OP Form 41 (Routing and Transmittal Slip, dated 3 July 1985, the trial counsel (TC) recommended approval of Chapter 10 request. He stated: a. The command insisted on going to trial with this case despite trial counsel recommendations to dispose of under Article 15, Uniform Code of Military Justice. She would not get any jail time and the same punishment as she would receive with a Field Grade Article 15. The previous commander was inclined to proceed with Article 15 but did not take action prior to leaving the command. The new commander proceeded with preferring charges without consulting the trial counsel. The TC was informed ten days before referral of charges that the victim in the case had met her expiration term of service (ETS). The trial counsel attempted once again to convince the commander to impose Article 15, but Special Court-Martial Convening Authority (SPCMA) insisted on special court-martial. The case was referred on 6 June 1985. The second witness, MPI who took applicants statement ETS?d. b. Previous commander neglected to suspend the applicants favorable actions and she was allowed to reenlist. Even if she is convicted, the Army is stuck with her until 1988. Even though she had no prior Article 15s, she was a mediocre Soldier at best, who also had indebtedness and emotional problems that have been a burden on her command and the Army. Because of the age of the case, neglect of the command, prohibitive cost of prosecution ($4000.00 to try a $300.00 larceny), speedy trial issues, light anticipated sentence, uselessness as a Soldier to the Army, he recommended approval of the Chapter 10 with a UOTHC discharge. 12. The applicant's chain of command and Staff Judge Advocate recommended approval of her request and on 19 July 1985, the appropriate separation authority approved the applicant's request directing she be reduced to the lowest enlisted grade and issued a Certificate of Under Other Than Honorable Conditions. 13. On the same date, the Commanding General issued a Letter of Reprimand to the applicant for the larceny of $330.00 from SPC W_ and making a false statement under oath. The applicant acknowledged receipt of the letter of reprimand and submitted a statement on her behalf. She stated: a. She was aware of the seriousness of the charges. At the time of the alleged incident, she was told to go to the military police station. She talked with MPI A_ and MPI S_. She told them exactly what happened when she was talking to SPC W_. She was then asked to take a polygraph and she consented. She went with MPI S_ and another female see Special Agent (SA) Mc_. SA Mc_ instructed her as to how the process would go. Afterwards, she asked him if she had failed the polygraph and he said that he did not like using that terminology and wanted to further talk to her. b. She went further to explain how she was coerced into making a confession. She wrote Senators J_ B_ and W_ R_ and representative T_ C_ to find out what could be done regarding the situation. She was told to listen to her defense counsel and she did. She was not receiving the help that she needed from her defense counsel or her chain of command. She could not see going to court with such a small chance of being acquitted. 14. Headquarters, 21st Support Command, Office of the Staff Judge Advocate (SJA), subject: Offer to Withdraw Request for Discharge, dated 7 August 1985, shows the SJA on behalf of the Commanding General gave the applicant the opportunity to withdraw her request for discharge. He stated that in her rebuttal to the letter of reprimand she replied that she did not commit the offenses charged. It concerned him because it may have given the impression of impropriety if the Army was to discharge her. He offered her opportunity to withdraw her request for discharge and to consult with a different defense attorney at no expense to herself. She was given 24 hours after receipt of the letter to withdraw her request. On 8 August 1985, the applicant responded that she did not desire to withdraw her request for discharge under AR 635-200, chapter 10. She further requested that the Commanding General approved her request. 15. On 5 September 1985, the applicant underwent a medical examination and mental status evaluation. In connection with the examination the following documents were completed: a. SF 93 (Report of Medical History) shows the applicant indicated she felt good about her health and she was not taking any medications. Among other conditions, she indicated she had a history of hair loss, frequent trouble sleeping, depression and excessive worry, and nervous trouble. She also indicated she had two miscarriages, one in September 1981 and another in March 1982; she was a patient at Walter Reed Medical Center Washington, DC. b. SF 88 (Report of Medical Examination) shows the physician determined the areas checked during the medical examination were normal with the exception of her head, face, neck, and scalp. He deferred the evaluation of the pelvic to yearly examination. He indicated that there was complete lack of scalp hair; alopecia which existed prior to service for 10 years. c. DA Form 3822-R (Report of Mental Status Evaluation) shows the physician indicated that she had the mental capacity to understand and participate in the proceedings and was mentally responsible; however, he did not complete the part of the form which states ?meets retention requirements of Chapter 3, AR 40-501? or ?needs further examination.? 16. On 12 September 1985, she was discharged accordingly under AR 635-200, Chapter 10, for the good of the service – in lieu of court-martial. Her service was characterized as UOTHC. She completed 5 years, 3 months and 15 days of net active service; 7 months and 13 days of her 3-year contractual obligation. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was awarded or authorized: * M-16 Rifle Sharpshooter Marksmanship Qualification Badge * Good Conduct Medal * Army Service Ribbon * Overseas Service Ribbon 17. On 27 January 1996, her petition to the Army Discharge Review Board (ADRB) was denied. The ADRB determined she was properly and equitably discharged. The applicant submitted a statement in which she states she was an easy target due to a medical condition totalis alopecia and she was having marital problems of physical abuse, which left the marks of a vulnerable, weak, and helpless person but not a thief. It was through that weakness that the investigator was able to coerce her into admitting to something she did not do. 18. The applicant states her discharge was improper and inequitable. She would like her discharge upgraded so that her only daughter will be able to lay her at rest someday. This incident never happened. She was coerced into making a statement because of fear. She was terrified and scared but she did not steal anything or anyone's money. This is not true and she needs to fight and defend herself and her character after 24 years. She has lived in agony for these 24 years and she is begging for this injustice to be corrected. a. Her record shows she enlisted and the Regular Army for a term of 4 years and reenlisted for a term of 3 years, at the age of 26 years old. Based on the available evidence there was administrative error and or irregularity that occurred during her indiscipline and separation process; specifically, (1) A statement/recommendation from trial counsel that identifies each of the failures and oversights that occurred through the process to include, the number of times he attempted to advise the commander of the appropriate action to take based on a multitude of issues to include, her records being void of indiscipline, the nature of the charge, the second witness having separated due to meeting her ETS, the age of the case, neglect of the command, speedy trial issues, light anticipated sentence, uselessness as a Soldier to the and recommended approval of the Chapter 10 with a UOTHC discharge. Additionally, his words were harsh and appear to be more personal frustration related than professional, and not supported by any evidence in the available records for him to describe her as a soldier with indebtedness and emotional problems that were burdensome and that she was useless to the Army. (2) Trial Counsels list of reasons and statement provide that not only was administrative error and irregularity introduced into the process but it also resulted in a lengthy process and potentially was aware of information that would have required commander action/assistance to her indebtedness and emotional health. b. Based on the aforementioned there was a significant amount of error and irregularity the applicant would not have been aware of during her separation process. It is reasonable to believe the applicant continued with her Chapter 10 request and declined to "start over" when the SJA provided as recommended action after she rebutted her written reprimand and advised she was coerced into admitting guilt. (1) AR 635-200 states a Chapter 10 is a voluntary discharge request in-lieu of trial by court martial. Soldiers could request separation when charges have been preferred against them for which under the Uniform Code of Military Justice (UCMJ) and Manual for Courts-Martial (MCM) 1984 included a bad conduct or dishonorable discharge. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. Paragraph 5-3 states the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. The discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. (2) According to the MCM, 1984, Article 121, UCMJ –– larceny of property other than military property of a value of more than $100.00 and Article 134, UCMJ –– false swearing, included a dishonorable discharge. 19. The applicant requests an upgrade so that she may receive benefits. The ABCMR is not authorized to grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits; however, in reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After review of the application and all evidence, aside from the administrative corrections indicated in the Administrative Notes section below the signature block, 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 applicant’s misconduct was investigated and she opted to receive a chapter 10 discharge in lieu of Court Martial. The Board found that the applicant provided insufficient independent corroborating evidence that the investigation’s findings into her misconduct were erroneous. Furthermore, the Board found insufficient evidence of the harassment of which the applicant claims (due to her medical condition and marital status) or evidence of post-service honorable conduct that might have mitigated the discharge characterization. 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: Aside from the Administrative Notes below the signature block, 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 12 September 1985, is missing important entries that affect her eligibility for post-service benefits. As a result, amend the DD Form 214 by adding the following entries to item 18 (Remarks): * "SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE" * "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 800528 UNTIL 850130" 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 Army Board for Correction of Military Records (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 (AR) 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the Soldier'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 was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. When a member is to be issued a discharge under other than honorable conditions, the convening authority will direct his immediate reduction to the lowest enlisted grade. d. A Chapter 10 (Discharge for the Good of the Service) is applicable to members who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM) 1984 included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service. The request could be submitted at any time after the charges had been preferred. Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. e. Paragraph 5-3 states, in pertinent part, that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority. Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary’s discretion and with the type of discharge as determined by him. Such authority may be given either in an individual case or by an order applicable to all cases specified in such orders 4 Per Manual for Courts-Martial, 1984, Article 121, UCMJ –– larceny of property other than military property of a value of more than $100.00 and Article 134, UCMJ –– false swearing, both included a dishonorable discharge. 5. 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. 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, 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. 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) AR20200000272 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20200000272 10 ABCMR Record of Proceedings (cont) AR20200000272 8