IN THE CASE OF:  

BOARD DATE:  14 July 2022

DOCKET NUMBER:  AR20210014271


APPLICANT’S REQUEST: The applicant requests her bad conduct discharge (BCD) be 
upgraded to under honorable conditions (general) or to an honorable discharge.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	DD Form 149 (Application for Correction of Military Record)
*	DD Form 293 (Application for the Review of Discharge)
*	a partial statement dated 4 September 2021
*	Class action notification letter
*	12 letters if support

FACTS:

1.  Standard of Review. When arriving at its findings and making its determinations, the 
Board shall review the petition for requested relief independent from any previous 
petitions submitted to the Army Review Discharge Board or the Army Board for 
Correction of Military Records (ABCMR).?
 
2.  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.  

3.  The applicant states she is applying for correction of her records pursuant to the 
Army Review Boards Agency notification of a class action suit and she requests that her 
case be reviewed. In a statement provided with her application she states:

	a. [Upon returning] from leave, she was in a car accident that rendered her left hand 
inoperable. She [underwent] physical and occupational therapy and had a stay in a 
mental ward on base and before finally[receiving] a BCD Special.

	b. She was and is a praying mother, woman, sister, and Soldier. She made a bad 
choice [when] she could not see any further for help of finances or life.

	c. There is no turning back, so she got herself together and devotes lots of her time 
to helping others, learning how to manage stress, finances, and anger, how to say no 
and enough. She got a civilian job, but her hand injury made her profession hard to 
perform to others safety. She was a waitress, and it made her happy. She needed 
professional help which landed her in another psychiatric ward, but she improved due to 
medication. She just wanted to be happy, healthy and thrive and keep her dependents 
safe.

	d. She has nightmares and can't sleep and can't close lots of doors (the wooden 
kind) once inside, she sweats profusely when stressed or anxious, has severe 
claustrophobia even in large rooms and her feet are constantly in pain and swollen 
which makes for an altered mood. She loves GOD and church but people not so much, 
it's too hard and she needs a little help with them. She has a new doctor, so she has 
new hope for people: and herself. She has not held a job since the mid-nineties and has 
had five fiancés, one who died, so she has an issue with long progressive relationships.
 
	e. She now has a great support system, and they are aware of her true military 
disposition and they still love and support her. She has spiritual help from retired CSM 
and now Pastor her son, her mother, and her newest psychiatrist.

	f.  Her mistake in her twenties has colored her life since. She has apologized and 
made restitution to the doctor she stole from and after so many civilian life denials due 
to her discharge and the shame of it at 50 years of age, she thinks this is quite lengthy 
to keep paying for her mistakes.

4.  The applicant enlisted in the Regular Army for 4 years on 28 August 1990.

5.  The applicant's available record does not contain a complete record of her service.  

6.  A 16 June 1993 DA Form 4187 (Personnel Action) shows she was confined by 
civilian authorities at 2300 hours 16 June 1993.  A 17 June 1993 DA Form 4187 shows 
she was returned to military control at 1900 hours 17 June 1993.

7.  Court-martial charges were preferred against the applicant for violations of the 
Uniform Code of Military Justice (UCMJ); however, the relevant DD Form 458 (Charge 
Sheet) is not available for review in this case. 

8.  On 14 September 1993, the applicant requested discharge under the provisions of 
Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10, in 
lieu of trial by court-martial.

	a.  She consulted with legal counsel and was advised of the basis for the 
contemplated trial by court-martial; the maximum 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 requested 
discharge under the provision of Army Regulation 635-200, Chapter 10, for the good of 
the service – in lieu of trial by court-martial.  She noted in her request that the charges 
pending were:

*	Charge I: violation of the UCMJ, Article 121, the specification, theft 
*	Charge II: Violation of the UCMJ, Article 80, specification 1 and 2, to wit: Attempt 
to Steal
*	Charge III: Violation of the UCMJ, Article 123, the specification, to wit: Intent to 
defraud, falsify charge receipt

	c.  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 Department of Veterans Affairs (VA), and she 
could be deprived of her rights and benefits as a veteran under both Federal and State 
laws.

	d.  The applicant waived her right to submit a statement on her own behalf.

9.  The applicant's company and battalion commanders recommended approval of the 
request; however, the court-martial convening authority denied the request.

10.  The applicant provided pages 92 through 102 of the transcript of her trial, wherein 
she set forth her family history prior to her enlistment and the situation that led up to her 
court-martial. The trial appears to have been adjudged on or about 18 October 1993.

11.  On 23 November 1993 her defense counsel submitted a request for leniency based 
on the applicant's financial problems, noting the applicant had exhausted all other 
avenues and services available to her prior to her theft of Dr. credit card.  While the 
applicant was found guilty of larceny, two specifications of attempted larceny, and 
forgery, she is not a bad person. She acted inappropriately and was accepted into the 
Pretrial Intervention Program. She has received a federal conviction for her misconduct. 
In addition, she is participating in the program that will assist her in future stressful 
situations as well as provide counseling that she needs. Imposing the bad-conduct 
discharge will be unduly harsh and not fit the offense committed. The applicant has 
saved the government time and money by pleading guilty and the federal conviction will 
forever serve as punishment for her conduct. In conclusion, the applicant asks that the 
adjudged punitive discharge be set aside.

12.  Headquarters, United states Army Training Center and Fort Jackson Special Court-
Martial Order Number 7, issued on 2 December 1993 shows the applicant pled and was 
found guilty of stealing a Visa credit card, from Dr. on or about 16 June 1993; attempted 
theft of a "Pulsar" brand watch, from Finlay Fine Jewelry Incorporated, on or about 16 
June 1993; attempt to steal a diamond and ruby ring from Finley Fine Jewelry 
Incorporated, on or about 16 June 1993; and forgery by falsely making and uttering a 
credit charge receipt, on or about 16 June 1993. The recommended sentence was to be 
reduced to the pay grade of E-1 and to be discharged from the service with a BCD.  

13.  The court-martial convening authority approved the sentence and, except for the 
part of the sentence extending to BCD, directed it be executed.

14.  On 15 December 1993, the applicant was placed on excess leave while awaiting 
review of the court-martial for a punitive discharge.

15.  On 30 June 1994, the United States Army Court of Military Review directed a 
correction to the Special Court-Martial Order Number 7 as follows " To reflect in the 
Specification of Charge III an offense of forgery by falsely making a credit charge 
receipt, on or about 16 June 1993." Further, on this date the findings and sentence were 
affirmed.

16.  The applicant's counsel appealed the finding to the U. S. Court of Appeals for the 
Armed Forces, stating the military judge erred by accepting the applicant's pleas to 
attempted larceny in specifications 1 and 2 of charge II, where the appellant testified 
that she intended to return the watch and ring to their owner for a cash refund, and 
where the stipulation of fact reflects a similar intent not to permanently deprive the 
owner/retailer of the watch and ring. 

17.  The date of the appeal is not clear, and the record does not contain any indication 
of what, if any, action the Appeals court took.

18.  Headquarters, United states Army Training Center and Fort Jackson Special Court-
Martial Order Number 1, issued on 3 January 1995, states the applicant's sentence of a 
BCD and reduction to E-1 had been affirmed and directed the BCD be executed.

19.  U.S. Army Human Resources Command, St. Louis, MO, Orders D-03-511506, 
dated 29 March 2005 indicates the applicant was honorably discharged from the U.S. 
Army Reserve (USAR) effective 29 March 2005. However, there is no other 
documentation of record to show that the applicant was granted any of the waivers 
required to enlist in the USAR that are associated with a BCD, that she actually enlisted 
in and served in the USAR, or if she did for how long. Additionally the applicant has 
made no reference to any USAR service.

20.  The available record does not contain a copy of the applicant's DD Form 214; 
however, the U.S. Army Human Resources Command, St. Louis, MO, issued an Official 
Statement of Service on 9 May 2007. The statement is incorrect and or incomplete.  It 
lists her character of service as unknown, her reenlistment eligibility code as "1" and her 
reason for discharge or release from active duty (REFRAD) as dropped from 
rolls/imprisonment.

21.  In support of her application, the applicant provided the following, which were 
provided to the Board in their entirety.  

        a.  A Determination of Medicaid Disability application, date 9 December 2009, in 
which the applicant requested disability for a diagnosis of schizophrenia, 
undifferentiated. 

         b.  An Edgewood Health evaluation dated 4 August 2021, that afforded her the 
diagnoses of generalized anxiety disorder, dysthymic disorder (persistent depressive 
disorder), and PTSD unspecified.

         c.  Twelve third party statements submitted on her behalf that describe the 
applicant as an active member of her church and a close friend who can always be 
relied on.  A person who is loyal, trustworthy and takes time to help others. She has 
always been a smart, loud and outgoing energetic individual was quick tempered and 
honest yet still very sweet. She is a very productive person but now she is tired and her 
injuries plague her a lot. She is also a strong believer in discipline and orderly conduct. 
She is a prime example of a person who has learned from her mistakes and has 
become a model citizen. She is fully engaged in her church ministry and a care provider 
for her mother, as a couple of examples of her growth. Her advice and wisdom are solid 
and sought after.

22.  Clemency guidance to the Boards for Correction of Military/Navy Records 
(BCM/NR) does not mandate relief, but rather provides standards and principles to 
guide Boards in application of their equitable relief authority to ensure each case will be 
assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby 
a service member under the same circumstances today would reasonably be expected 
to receive a more favorable outcome.  
23.  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.

24.  MEDICAL REVIEW:  The Army Review Boards Agency (ARBA) Medical Advisor 
reviewed the supporting documents and the applicant’s military service records. Her 
hardcopy medical record was not available for review. A copy of her treatment records 
dated 4 August 2021 indicates she was diagnosed with Generalized Anxiety Disorder 
(GAD) on 25 February 2020. On 4 August 2021, she was diagnosed with Dysthymic 
Disorder and post-traumatic stress disordet (PTSD), unspecified. A review of the 
Department of Veterans Affairs’ (VA) Joint Legacy Viewer indicates the applicant has 
not been evaluated or treated in the VA system. She does not have a service connected 
disability rating. An administrative note dated 9 February 2012 informed the applicant 
she is not eligible for medical benefits. There is documentation to support a behavioral 
health diagnosis at the time of her discharge. There is no psychiatric diagnosis to 
consider with respect to mitigation of the misconduct that led to her discharge. In 
addition, none of her current diagnoses would be considered a mitigating factor for her 
misconduct. 

*	Did the applicant have a condition or experience that may excuse or mitigate 
the discharge? No.
*	Did the condition exist or experience occur during military service? No.
*	Does the condition experience actually excuse or mitigate the discharge? Not 
applicable.
*	Does the condition or experience outweigh the discharge? Not applicable.
      
      
BOARD DISCUSSION:

The Board carefully considered the applicant's request, supporting documents, 
evidence in the records, a medical review, and published Department of Defense 
guidance for liberal consideration of discharge upgrade requests. The Board considered 
the applicant's statement, her record of service to include deployment, the frequency 
and nature of her misconduct and the reason for her separation. The Board considered 
the applicant's behavioral health claim and the review and conclusions of the ARBA 
Medical Advisor. The Board found the letters of support she provided insufficient to 
support an upgrade of her character of service. The Board further found insufficient 
evidence of in-service mitigating factors and concurred with the conclusion of the 
medical advising official regarding her misconduct not being mitigated by a behavioral 
health condition.  Based on a preponderance of evidence, the Board determined 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

: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.


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.  Title 10, United State Code, section 1556 provides the Secretary of the Army shall 
ensure that an applicant seeking corrective action by the Army Review Boards Agency 
(ARBA) is provided a copy of all correspondence and communications, including 
summaries of verbal communications, with any agencies or persons external to agency 
or board, or a member of the staff of the agency or Board, that directly pertains to or has 
material effect on the applicant's case, except as authorized by statute.  

3.  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.

4.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides 
the specific authorities (regulatory or directive), reasons for separating Soldiers from 
active duty, and the SPD codes to be entered on the DD Form 214.  It states that the 
SPD code of JJD is the appropriate code to assign to Soldiers separated under the 
provisions of AR 635-200, Chapter 3, by sentence of a trial by court-martial.  The 
SPD/RE Code Cross Reference Table included in the regulation establishes RE-4 as 
the proper code to assign members separated with this SPD code. 

5.  Army Regulation 601-210 determines RA and USAR reentry eligibility and provides 
regulatory guidance on the RE codes.  This table provides instruction for determining 
the RE Code for Active Army Soldiers, as well as RC Soldiers separated for cause and 
exceptional category for physical disability.  The cross reference table shows an SPD of 
JJD requires an RE 4.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted 
personnel.  The version in effect at the time provided that:

	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.  A Soldier will be given a BCD/DD only pursuant to an approved sentence of a 
general or special court-martial.  The appellate review must be completed and the 
affirmed sentence ordered duly executed.  

	d.  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.

7.  On 3?September 2014, the Secretary of Defense directed the Service Discharge 
Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records 
(BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical 
considerations and mitigating factors when taking action on applications from former 
service members administratively discharged UOTHC and who have been diagnosed 
with PTSD by a competent mental health professional representing a civilian healthcare 
provider in order to determine if it would be appropriate to upgrade the characterization 
of the applicant's service.

8.  On 25?August 2017, the Office of the Undersecretary of Defense for Personnel and 
Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs 
and BCM/NRs when considering requests by Veterans for modification of their 
discharges due in whole or in part to: mental health conditions, including PTSD; 
Traumatic Brain Injury; sexual assault; or sexual harassment. Boards are to give a 
liberal consideration to Veterans petitioning for discharge relief when the application for 
relief is based in whole or in part to those conditions or experiences. The guidance 
further describes evidence sources and criteria and requires Boards to consider the 
conditions or experiences presented in evidence as potential mitigation for misconduct 
that led to the discharge. 

9.  On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued 
guidance to Military DRBs and 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)	 AR20210014271


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

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