IN THE CASE OF: BOARD DATE: 17 April 2023 DOCKET NUMBER: AR20220009362 APPLICANT REQUESTS: in effect, upgrade of her under honorable conditions (general) discharge and an appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty * U.S. District Court of Hawaii Dismissal * letter to Congressional Representative * Department of the Army, Office of the Chief of Legislative Liaison, Response * House of Representative, inquiry response to Applicant * Inspector General, Department of Defense, Freedom of Information Act request * Department of Veterans Affairs (VA) summary of benefits (two) * Army Discharge Review Board (ADRB), request for additional documents * Electronic mail (email) printouts (three) * Final Judgment and Decree of Divorce, State of Georgia * DD Form 827 (Application for Arrears in Pay), dated 24 February 2022 * Defense Finance Accounting Service letter, dated 19 May 2022 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 framed and wrongfully incarcerated by Honolulu, Hawaii, Federal Agents. She wants separation pay to be retroactively paid from 16 August 2000 through 17 May 2018, as she has been trying to get justice since being released on 17 October 2018. 3. The applicant enlisted in the Regular Army on 16 August 2000. She was awarded military occupational specialty 92G (Culinary Specialist). She had four immediate reenlistments on 27 November 2003, 31 March 2005, 11 June 2007 and on 12 November 2013. 4. She served in Kuwait from 19 January 2005 through 21 January 2006, and in Korea from 1 November 2007 to 1 November 2008 and 1 February 2009 to 1 March 2010. 5. ABCMR Docket Number AR20120015786, indicates the applicant accepted non- judicial punishment (NJP) on 25 February 2010, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being disrespectful in deportment towards a Staff Sergeant (SSG) by hanging up the phone on him. 6. The applicant was promoted to SSG/E-6 on 1 March 2010. 7. She served in Afghanistan from 1 October 2011 through 29 July 2012. 8. The applicant petitioned the ABCMR for removal of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ). The Board denied her request on 6 November 2012, indicating the evidence presented did not demonstrate the existence of a probable error or injustice. 9. The available record is void of a separation packet containing the specific facts and circumstances surrounding her discharge processing. However, her ADRB Case Report and Directive states she received NJP on 21 December 2017, under the provisions of Article 15 of the UCMJ, for failing to go at the time prescribed to her appointed place of duty, on or about 21 July 2017, 15 September 2017, 25 October 2017, and 26 October 2017; being absent without leave (AWOL) on two separate occasions between 22 November 2017 and 8 December 2017; she violated a lawful general regulation by fraternizing with another Soldier between 2 July and 27 July 2017; and for making a false official statement to the First Sergeant with the intent to deceive. Her punishment included reduction to E-5, forfeiture of pay (suspended), extra duty, and restriction. Her duty status was changed to AWOL effective 22 November 2017 then present for duty to confinement, effective 3 January 2018. 10. The applicant's record is void of a DA Form 3822-R (Report of Mental Status Evaluation) to show if she underwent a mental status evaluation. 11. Orders Number 121-0005, issued by U.S. Army Garrison-Hawaii, on 1 May 2018 show she was reassigned to the U.S. Army Transition Point for separation with a discharge date of 17 May 2018. 12. The applicant was discharged on 17 May 2018. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for misconduct (serious offence). Her service was characterized as under honorable conditions (general). She was credited with 17 years, 3 months, and 28 days of net active service. She had two period of lost time totaling 19 days and 135 days. She was awarded or authorized the: * Army Commendation Medal (3rd Award) * Army Achievement Medal (8th Award) * Army Good Conduct Medal (5th Award) * Global War on Terrorism Expeditionary Medal * Global War on Terrorism Service Medal * Korea Defense Service Medal * Afghanistan Campaign Medal (with 2 Campaign Stars) * Army Service Ribbon * Overseas Service Ribbon (2nd Award) * Combat Action Badge 13. The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge. After careful review and consideration on 20 May 2019, the ADRB determined that she was both properly and equitably discharged. 14. By memorandum, dated 7 April 2021, the applicant was asked to provide separation files to indicate the specific reason for her discharge. On 19 April 2021, she responded stating she did not have a separation packet. 15. The applicant provides: a. A U.S. District Court for the District of Hawaii, indictment dismissal, dated 31 October 2018. b. A letter to her Congressional Representative, dated 1 May 2018, regarding being discharged without notice and the injustice she went through. The Congressman responded on 28 July 2020, advising her to submit a DD Form 149 to the ABCMR. c. An Inspector General (IG) response to a request for freedom of Information request for records, dated 10 November 2020. d. A Final Judgment and Degree of Divorce, ordered on 7 June 2021, by the Superior Court of Liberty County, State of Georgia e. A VA summary of benefits letter, dated 14 December 2020 and 17 February 2022, showing the applicant is rated at 100 percent for service-connected disabilities. f. A DD Form 827, requesting arrears in pay due to wrongful incarceration and discharge. 16. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and her service record in accordance with the published equity, injustice, or clemency guidance. BOARD DISCUSSION: After reviewing the application, all supporting documents and the evidence found within the military record, the Board determined it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also determined relief was warranted. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and published DoD guidance for consideration of discharge upgrade requests. Based upon the lengthy period of honorable service completed prior to any misconduct in the applicant’s record, the statement of the applicant concerning the misconduct leading to the applicant’s separation and the supporting court order showing the applicant’s civilian charges were dismissed, the Board concluded there was sufficient evidence of an injustice warranting the changing of the applicant’s characterization of service to Honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing: * Characterization of Service: Honorable * Separation Authority: No change * Separation Code: No change * Reentry Code: No change * Narrative Reason for Separation: No change 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, U.S. Code, 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. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was a separation with honor; commanders issued an honorable discharge certificate based on the Soldier's proper military behavior and proficient duty performance. Commanders were to give due consideration to the Soldier's age, length of service, and general aptitude. Where there were infractions of discipline, commanders were to assess the extent of those infractions as well as the seriousness of the offenses. b. Chapter 14 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 discharge under other than honorable conditions (UOTHC) was normally considered appropriate. However, the separation authority could direct a general discharge if such was merited by the Soldier's overall record. 4. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NR) 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) AR20220009362 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1