IN THE CASE OF: BOARD DATE: 6 December 2022 DOCKET NUMBER: AR20220003949 APPLICANT REQUESTS: upgrade of her under other than honorable conditions (UOTHC) characterization of service to honorable. APPLICANT'S SUPPORTING DOCUMENT CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 her discharge was unjust. While deployed to Egypt her spouse notified her that he was filing for divorce due to abandonment and was requesting custody of her son who was 4 years old. Upon return to the U.S., she received orders for Korea. She requested to change her assignment date to attend court for her pending divorce and custody hearing. Her request was refused, and she was given uniform code of military justice action under Article 15. Her discharge was unjust because the Army did not allow her to change her assignment report date to Korea in order for her to attend court to fight for custody of her child. This is a valid reason for an upgrade of her UOTHC discharge. 3. On 3 January 1997 she enlisted in the Regular Army for 4 years in the rank of private first class (PFC/E-3). Her record shows: a. On 4 September 1997 she was assigned to 110th Quartermaster Company, Hunter Army Airfield, GA. b. On 1 April 1998 she was promoted to the rank of specialist (SPC/E-4). c. On 2 October 2000 the applicant reenlisted for a period of 3 years. d. Orders 262-52 dated 19 September 2001 placed her on assignment to Korea with a report date in accordance with her port call with an available date of 7 January 2002. e. On 7 November 2001, the applicant received port call instructions to check in her flight to Korea on 15 January 2002. f. Orders 17-60 dated 17 January 2002 amended Orders 262-52, dated 19 September 2001, changing her report date (system purposes only) from 16 January to 27 January 2002 and her available date from 7 January to 25 January 2002. g. Orders 28-50 dated 28 January 2002 amended Orders 262-52, dated 19 September 2001, changing her report date (system purposes only) from 27 January to 31 January 2002. h. On 28 January 2002 the applicant received new port call instructions to check in her flight to Korea on 29 January 2002. i. The applicant’s permanent change of station (PCS) leave from 28-29 January 2002 was voided. j. Three DA Forms 2823 (Sworn Statement): (1) First Lieutenant states on 30 January 2002 at about 1330hrs in the motorpool Captain (CPT) gave the applicant a direct order to get on the plane and fly to Korea. He instructed Staff Sergeant and Sergeant to escort her to the airport. (2) Sergeant sworn statement dated 30 January 2002, states in part on an unspecified day in January 2002 at approximately 1330hrs the applicant told her that she had no intent on getting on the plane to Korea. The applicant informed the company commander that her personal issues were preventing her to leave because she would lose a great deal if she did not resolve her issues. The company commander ordered her to get on the plane. The applicant refused to get on the plane and stated she was willing to face whatever punishment. (3) Staff Sergeant sworn statement dated 31 January 2002, states in part on 30 January 2002 while escorting the applicant to the airport she said she was not going to get on the plane, and he told her "I highly advise you to go to Korea." He told her again to go thru the boarding area and they would wait until the plane took off. The applicant was paged four times and they continued to wait until the plane was finished boarding and the applicant came back from the boarding area, and they brought her back to post. k. An ERB dated 13 March 2002 shows the applicant was awarded the Army Good Conduct Medal. l. On 28 March 2002, court-martial charges were preferred against her for: (1) Charge I, Article 87, three specifications: * Specification 1 - at or near, through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 15 January 2002 * Specification 2 - at or near through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 27 January 2002 * Specification 3 - at or near through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 29 January 2002 (2) Charge II, Article 90, specification - having received a lawful command from CPT her superior commissioned officer, then known by the accused to be her superior commissioned officer, to board her flight to Korea, or words to that effect, did, at or near on or about 31 January 2002, willfully disobey the same. m. On 28 March, 2 April, and an unspecified date in 2002, his company, battalion, and senior commanders recommended she receive a special court-martial empowered to adjudge a bad conduct discharge. n. On 22 April 2002, the acting Staff Judge Advocate recommended that the charges and their specifications be tried by a special court-martial empowered to adjudge a bad-conduct discharge and that the case be referred to the court-martial panel previously selected on Court-Martial Convening Order Number 2, dated 25 January 2002. o. On 13 May 2002 the defense counsel informed the applicant of the witnesses in her case. p. On 24 May 2002 the applicant voluntarily requested she be discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial). 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. She elected to submit statements in her own behalf as follows: (1) The applicant had sole custody of her son, until she went in for surgery in June 2001. His father her then-husband, cared for their son during her hospital stay and recovery. Based on this, her then-husband petitioned for sole custody of during their divorce proceeding. A hearing was scheduled for April 2002 and she had PCS orders to Korea for January 2002. She was informed by the court that she was required to attend the April 2002 hearing in person or forfeit custody. The applicant discussed this with a legal assistance attorney, CPT and with her chain of command, including the Commander, CPT. Her chain of command and CPT agreed that she merited a delay in her PCS orders so that she could attend the hearing; after that she could go to Korea. (2) All seemed well until CPT set a movement date. Her chain of command interceded and he moved the movement date again but did not tell her or her chain of command. When they found out, her chain of command again interceded with CPT. He then ordered her to get on a later flight, despite the fact that he had originally supported a delay in movement until the hearing. CPT told the applicant and she understood that her Korea chain of command would probably not approve leave for her to return for the hearing. She has had no Article 15s in her career, no negative counselings except those pertaining to these charges, and was awarded an Army Achievement Medal for one deployment and a Certificate of Achievement for National Training Center operations. She also deployed to Bright Star, Marne Focus, the mission readiness exercise (MRE) and other deployments/missions. She requested an honorable discharge based on her situation and career, and if denied a general discharge. q. On 23 May 2002 (appears to be a typographical error, would have taken place after the applicant’s 24 May 2002 request for a Chapter 10), the Staff Judge Advocate recommended the applicant’s request to be discharged in lieu of court-martial per AR 635-200, Chapter 10 be approved with a UOTHC discharge. r. On 23 May 2002 (appears to be a typographical error, would have taken place after the applicant’s 24 May 2002 request for a Chapter 10), the appropriate authority approved the applicant's request with issuance of an UOTHC discharge and barred her from the installation. s. Orders dated 6 June 2002 assigned her to the Southeastern U.S. Army Transition Point, Hunter Army Airfield, GA effective 13 June 2002 for separation processing. t. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 13 June 2002, she was discharged accordingly. She was discharged from active duty under the provisions of AR 635-200, Chapter 10 (In Lieu of Trial by Court-Martial) with an UOTHC characterization of service in the rank of private (PVT/E-1). She completed 5 years, 5 months and 5 days of net active service during this period and was awarded or authorized: * National Defense Service Medal * Army Lapel Button * Army Service Ribbon * Expert Badge (Grenade) * Sharpshooter Badge (M16 Rifle) u. SPCM Order Number 17, dated 23 July 2002, shows the applicant was arraigned at Fort Stewart, GA at a SPCM for the following offenses: (1) Charge I, Article 87, Plea - None Entered; Finding - None Entered, three specifications: * Specification 1 - through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 15 January 2002, Plea - None Entered; Finding - None Entered * Specification 2 - through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 27 January 2002, Plea - None Entered; Finding - None Entered * Specification 3 - through design miss the movement of Flight MC 77 with which she was required in the course of duty to move on or about 29 January 2002, Plea - None Entered; Finding - None Entered (2) Charge II, Article 90, Plea - None Entered; Finding - None Entered specification - willfully disobeyed a lawful command from CPT her superior commissioned officer, to board her flight to Korea, or words to that effect, on or about 31 January 2002, Plea - None Entered; Finding - None Entered. (3) The applicant having been arraigned; the proceedings were terminated by dismissal of charges by the convening authority on 23 May 2002. Due to the subsequent administrative discharge of the accused from the service under the provisions of Chapter 10, AR 635-200, the charges and specifications were dismissed. All rights, privileges, and property of which the applicant may have been deprived by virtue of these proceedings were hereby restored. 4. The applicant’s record is void of uniform code of military action under an Article 15, deployment to Egypt, and an Army Achievement Medal. 5. On 24 July 2002, the applicant applied to the Army Discharge Review Board for an upgrade of her UOTHC discharge. On 23 October 2002, after careful review of her application, military records and all other available evidence, the Army Discharge Review Board determined that the applicant was properly and equitably discharged. Accordingly, her request for an upgrade of her discharge was denied. 6. AR 635-200 states a chapter 10 is a voluntary discharge request in-lieu of trial by court martial. In doing so, she would have waived her opportunity to appear before a court-martial and risk a felony conviction. An UOTHC is authorized and normally considered appropriate; however, a member may be awarded an honorable or general discharge, if during the current enlistment period of obligated service, he has been awarded a personal decoration or if warranted by the particular circumstances of a specific case. 7. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge (missing movement and disobeying orders). After being charged, she consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. The Board considered his length of service and determine that although her service did not rise to the level required for an honorable characterization of service, an upgrade to a general discharge is appropriate under published DoD guidance for liberal consideration of discharge upgrade requests. 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: In addition to the correction addressed in Administrative Note(s) below, 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 for the period ending 13 June 2002 showing: * Characterization of Service: General, Under Honorable Conditions * Separation Authority: No change * Separation Code: No change * Reentry (RE) 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. ADMINISTRATIVE NOTE(S): A review of the applicant’s records shows his DD Form 214 omitted administrative entries and/or awards. As a result, amend the DD Form 214 by adding in * Item 13, Army Good Conduct Medal * Item 18, the entries: “Member has completed first term of service” and “Continuous honorable service from 3 January 1997 to 1 October 2000” REFERENCES: 1. Title 10, U.S. Code, 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. AR 635-200 (Personnel Separations - Enlisted Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an UOTHC discharge. b. 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. c. 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. d. When a Soldier is to be discharged UOTHC, the separation authority would direct an immediate reduction to the lowest enlisted grade. 3. 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. 4. Army Regulation 635-8 (Separations Processing and Documents), currently in effect, provides for the preparation and distribution of the DD Form 214. It states for item 18 (Remarks) is used for mandatory requirements when a separate block is not available; as a continuation for selected entries, or for conditional entries as listed below: a. Conditional entries include, for enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter “Immediate Reenlistments this Period” and specify inclusive dates for each period of reenlistment. For Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” enter “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until (date before commencement of current enlistment). Then, enter the specific periods of reenlistment as prescribed above. b. Mandatory entry: “Soldier (HAS) or (HAS NOT) Completed First Full Term of Service.” This information assists the State in determining eligibility for unemployment compensation entitlement. The following guidance will help determine which entry to use: (1) To determine if an enlisted Soldier has completed the first full term of enlistment, refer to the enlistment contract and any extensions to those initial enlistment documents and compare the term of enlistment to the net service in block 12c of the DD Form 214. If Soldier has completed or exceeded the initial enlistment, enter “HAS.” If block 12c of the DD Form 214 is less than the Soldier’s commitment, enter “HAS NOT.” (2) Routinely, a Soldier should not be considered to have completed the first full term of service if separation occurs before the end of the initial contracted period of service. However, if a Soldier reenlists before the completion of that period of service, the first term of service is effectively redefined by virtue of the reenlistment contract. commitment, enter “HAS NOT.” //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003949 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1