IN THE CASE OF: BOARD DATE: 14 September 2022 DOCKET NUMBER: AR20220003648 APPLICANT REQUESTS: upgrade of her under honorable conditions (general) discharge to an honorable discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 (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 made one isolated mistake as a very young woman fresh out of high school and her first time away from home. Sadly, she has been paying for that mistake her whole life. She is 42 years old with 4 growing children and this is hanging over her head every time she fills out a job application. She just wants to be able to provide for her family and get a better job. 3. The applicant enlisted in the Regular Army on 26 June 1997. She reenlisted on 12 October 2000 and 19 December 2001. She was awarded military occupational specialty was 92A (Automated Logistical Specialist). 4. She served in Egypt from 9 June 2000 through 12 June 2001. 5. By sworn statement, dated 25 April 2002, the applicant stated she had some drinks at home prior to going to a house party at a friend's house. There were drinks and marijuana at the party, and she had a few more drinks. She smoked a cigarette that was discovered to have been dipped in embalming fluid. She stayed over night at her friend's place and the next morning discovered she was urinating blood. She went to sick call and was told she had a very bad urinary tract infection and a lot of protein in her urine. They wanted to test her kidney to make sure it wasn’t a kidney problem. The applicant asked Staff Sergeant S__ if she needed her prescriptions and SSG S__ said no. On 22 April 2002, the applicant heard a rumor that a Soldier had come up hot on the urinalysis. The applicant asked SSG McD__, "hot for what?" he said phencyclidine (PCP). She called a friend and asked what was in it and he told her that three different types of heroin, PCP, jet fuel, crystal ethyl, crystal meth and some other stuff. 6. The applicant was formally counseled by her commander on 16 May 2002 to discuss substandard performance regarding drug abuse. He notified her that separation action was being initiated for her actions. 7. The applicant's commander notified the applicant on 16 May 2002 that he had initiated actions to separate her from service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. He recommended that she receive a general, under honorable conditions characterization of service. 8. The applicant acknowledged receipt of the notification memorandum. She consulted with counsel and waived her right to consideration of her case by a board of officers and personal appearance before a board of officers if she received an honorable discharge. She further acknowledged she did not have six years of total active service and was entitled to an administrative separation board. She elected to submit statements in her own behalf; however, a statement is not available for review. 9. The applicant's commander formally recommended her separation under the provisions of Army Regulation 635-200, paragraph 14-12c. On 1 July 2002, the separation authority approved the recommended discharge and directed the issuance of a General Discharge Certificate. 10. The applicant was discharged on 7 August 2002. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct. Her service was characterized as under honorable conditions (general). She completed 5 years, 1 month, and 12 days of active service. She was awarded or authorized the: * Army Lapel Button * Army Commendation Medal * Army Good Conduct Medal * National Defense service Medal * Army Service Ribbon * Overseas Service Ribbon * Driver and Mechanic Badge with Driver-W Bar. 11. By regulation, Soldiers are subject to separation under the provisions of Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for discharge under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 12. In reaching its determination, the Board can consider the applicant’s petition and service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that partial relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service. Upon review of the applicant’s petition and available military records, the Board found insufficient evidence of in-service mitigation to overcome the misconduct. The applicant provided no evidence of post-service achievements, or letters of reference in support of a clemency determination. The applicant was discharged for misconduct and was provided an under honorable conditions (General) characterization of service. The Board agreed that the applicant's discharge characterization is warranted as she did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. 2. However, the Board determined the applicant had a prior period of honorable service which is not currently reflected on her DD Form 214 and recommended that change be completed to more accurately show her period of honorable service by granting a partial upgrade. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to item 18 (Remarks) of her DD Form 214 to show * SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE * CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19970626 UNTIL 20001011 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade of the applicant’s discharge to honorable. 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): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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. 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. c. Chapter 14 of this regulation established policy and prescribed procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. A UOTHC discharge was normally considered appropriate. However, the separation authority could direct a general discharge if merited by the Soldier's overall record. 3. The Under Secretary of Defense for Personnel and Readiness issued guidance to Service Discharge Review Boards and Service 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) AR20220003648 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1