IN THE CASE OF: BOARD DATE: 21 March 2023 DOCKET NUMBER: AR20220005068 APPLICANT REQUESTS: Reconsideration of her previous request for an upgrade of her under other than honorable conditions (UOTHC) discharge to an honorable discharge; and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), with an undated self-authored statement * DD Form 4 (Enlistment/Reenlistment Document), dated 23 June 1992 and 30 June 1992 * Separation Orders Number 339-38, dated 23 December 1996 * DD Form 214 (Certificate of Release or Discharge from Actie Duty), for the period ending 23 December 1996 * DD Form 293 (Application for the Review of Discharge or Dismissal), dated 19 May 1999 for Army Discharge Review Board (ADRB) Case Number AR1999027165, denied on 30 June 1999 * Congressional Liaison Letter, with Privacy Release Consent, dated 11 September 2013 * Joint Services Transcript, dated 28 July 2014 * Summary of Skills, dated through July 2017 * National Personnel Records Center, Response, dated 12 September 2017 * Support Letters, dated in 2017 (five) * Department of Veterans Affairs (VA) Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), dated 1 November 2017 (two pages) * VA Benefits Claims Receipt Letter, dated 15 November 2017 * VA Form 21-4138 (Statement in Support of Claim), dated 29 November 2017 * DD Form 149, dated 4 December 2017 * Privacy Release, dated 11 January 2022, with email and Congressional Liaison Letter, dated 28 January 2022 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket AR1999027617 on 11 August 1999. 2. As a new contention, the applicant states she completed training and was working with two different installations and was reported as absent without leave (AWOL) while in the hospital for an emergency appendectomy. Her charges had been dropped twice and right after having her first child, she was ordered to report to Fort Sill, OK, and was forced to sign for a less than honorable discharge. She was threatened with prison and not being able to see her son. She has been trying since then to get an upgrade through her Congressman, but they keep losing her applications. She has been working with veterans in crisis for four years and should be upgraded due to being given inaccurate information and her exemplary works since then. 3. The applicant's service record and previous board considerations show: a. On 30 October 1992, the applicant enlisted in the Regular Army for a 4-year service obligation. Upon completion of advanced individual training at Fort Sam Houston, TX, on 9 April 1993, she was reassigned to Fort Riley, KS. She was authorized permanent change of station leave enroute. When her grandfather became ill, she reported to Fort Irwin, CA, was attached to the Los Alamitos Reserve Center and requested a compassionate reassignment. b. In her previous case, she stated she was treated at a Naval care facility for stomach pains on or about 30 May 1993. She reported to the Yorba Linda Medical Center emergency room the next day and was admitted for an appendectomy. She was hospitalized for about 10 days and soon after discharged and placed on convalescent leave by the Long Beach Naval Hospital. She returned once and was told to return about three days later, but her husband was caring for her, so she cancelled the appointment. On or about 18 June 1993, she went to Fort Irwin, CA, to get her check and was arrested for being AWOL. c. The applicant was reported as AWOL on or about 2 June 1993, from her unit at Fort Riley, KS. d. On 11 September 1996, the applicant completed a memorandum waiving her right to a separation examination at Fort Sill, OK. e. On 12 September 1996, court-martial charges were preferred against the applicant for violations of the Uniform Code of Military Justice (UCMJ). Her DD Form 458 (Charge Sheet) shows she was charged with being AWOL from on or about 2 June 1993 until on or about 10 September 1996. f. On 12 September 1996, after consulting with counsel, the applicant voluntarily requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Chapter 10 – in lieu of trial by court martial. In her request for discharge, she acknowledged her understanding that by requesting discharge, she was admitting guilt to the charge against her of being AWOL from 931231-960910, 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 VA, and she could be deprived of her rights and benefits as a veteran under both Federal and State laws. She further understood that there was no automatic upgrading nor review by any government agency of a less than honorable discharge. She elected not submit a statement in her own behalf. g. On 30 September 1996, a memorandum for record noted by a military personnel clerk, states the applicant claimed she was not AWOL but had been previously discharged and the charges were dropped. It also shows her request for a compassionate reassignment had been denied, she was relieved from her attachment and ordered to report to Fort Riley, KS, no later than 1 June 1993. The applicant never reported and should have been charged as AWOL effective 2 June 1993, but because of an error she signed her Chapter 10 request with an AWOL start date of 31 December 1993 (surrendered), therefore dates could not be changed. h. On 24 October 1996, the applicant's commander recommended approval of her request for separation under the provisions of AR 635-200, Chapter 10 – in lieu of trial by court martial, with an UOTHC discharge. He noted the applicant was charge with being AWOL for 984 days. On 22 November 1996, the applicant's intermediate commander recommended approval of her request for separation, with an UOTHC discharge. i. On 22 November 1996, the separation authority approved the applicant's request for discharge. He directed the applicant be reduced to the lowest enlisted grade and issued an UOTHC Discharge Certificate. j. On 23 December 1996, the applicant was discharged accordingly. Her DD Form 214 confirms she was discharged under the provisions of AR 635-200, Chapter 10 – in lieu of trial by court martial. Her service was characterized as UOTHC. She was credited with completing 1 year and 5 months of net active service this period, she had lost time for the period of 19931231 - 19960909. 4. The applicant was charged due to the commission of an offense punishable under the UCMJ with a punitive discharge. Subsequent to 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. 5. There is not now nor has there ever been any provision in law or regulation that allowed for automatic upgrade of any less than honorable discharge based solely on a period of lapsed time. This myth is based on prior regulations that precluded an applicant from applying for a discharge review for a given period post discharge. 6. On 30 June 1999, the ADRB reviewed the applicant's petition for an upgrade of her discharge. The Board determined after careful consideration of her military records and all other available evidence, that she was properly discharged, and denied her request. 7. On 11 August 1999, the ABCMR reviewed the applicant's petition for an upgrade of her discharge. The Board determined after careful consideration of her military records and all other available evidence, that she was properly discharged and denied her request. 8. The applicant provides a self-authored statement as detailed above and many miscellaneous VA documents. She also provides four support letters attesting that she was becoming an asset, was passionate about volunteering with a program helping veterans seeking assistance, had gainful employment and maintained long term housing, and had become a mentor and role model while helping others. 9. 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. BOARD DISCUSSION: 1. The Board determined the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. 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. After being charged, he 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 applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination. Based on a preponderance of evidence, the Board determined that 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 to amend the decision of the ABCMR set forth in Docket Number AR1999027617 on 11 August 1999. 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. 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 ABCMR has the discretion to hold a hearing; applicants do not have a right to appear personally before the Board. The Director or the ABCMR may grant formal hearings whenever justice requires. 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 Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs (VA) benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An UOTHC discharge was normally considered appropriate. 3. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards 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) AR20220005068 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1