IN THE CASE OF: BOARD DATE: 18 April 2023 DOCKET NUMBER: AR20220009108 APPLICANT REQUESTS: an upgrade of her under other than honorable conditions (UOTHC) discharge to honorable. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement * Article 15 * Warning Against Reentering the Military Reservation Letter * Discharge Certificate * DD Form 214 (Certificate of Release or Discharge from active Duty) * Character Letters (three) * Tucson College Certificate and Resume 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 she believes that although there was no error in her case, that in the interest of justice, the lessons learned and 36 years on her record. Justice has been served and her discharge status should be amended. It would be just to consider her application. 3. The applicant enlisted in the Regular Army on 15 August 1984 for four years. She was 18 years old at the time. She completed basic combat training at Fort Dix, NJ. She was assigned to Monterey, CA, for advanced individual training (AIT) and later assigned to Goodfellow Air Force Base (AFB), TX. 4. The applicant was formally counseled on several occasions between 30 October and 18 November 1985, regarding her strong desire to be discharged from the Army. She requested to speak with the company commander and an appointment was arranged for her. She no longer wanted to be in the Army and acknowledged she was aware of her contractual obligation with the Army. 5. The applicant received academic counseling on 22 November 1985 for her second failure in the course. It was recommended that she be withdrawn from the course. Her grades up to this point had been above average and she was a Defense Language Institute (DLI) graduate. The counselor felt the applicant deliberately took this course of action in order to speed her elimination from the Army. On the same date, she was placed on casual status. 6. On 13 December 1985, the applicant was again counseled on failing to meet course objectives. The instructor recommended she be retained in the military, sent to a direct duty assignment, and withdrawn from this course of instruction. The Managerial and Analysis Training Division, Chief, recommended the applicant be considered for reclassification into a military occupational specialty (MOS) which required less technical training, the commander approved. 7. By sworn statement, dated 19 December 1985, the applicant stated that she believed she did not belong in military service. She brought this problem to the attention of her platoon sergeant, and was told that they would do nothing to help because she had been in past six-months. Still unhappy and not belonging in the Army she completed the course at DLI. Arriving at Goodfellow AFB, she had one goal, to get out of the Army because this problem had only worsened with time. a. On her first day there she again brought this to the attention of her platoon sergeant and was told nothing could be done. She could not accept that answer and used her chain of command to see her first sergeant, company, and battalion commanders. She sought legal assistance, chaplain assistance and help from the mental health clinic. b. She found that unfortunately the only way to get action was not with the system but against it. She felt it was the only method to achieve her goal. And she proceeded to intentionally fail the course and be eliminated from school. She saw the Army as a big game, one she did not wish to participate in and would continue to do whatever it took to be discharged. c. She planned to return to upstate , get married, and go to school. If she was reclassified into a new MOS, she would again intentionally fail knowing that a third MOS was not possible. She did not care what happened as far as a possible second MOS because her only concern was to achieve her goal of getting out at any cost and that was what she planned to do and hoped the Army could realize that and take necessary actions. 8. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 6 January 1986 for being derelict in the performance of her duties by willfully failing the course of instruction, on or about 13 December 1985. Her punishment consisted of reduction to private/E-1, forfeiture of $310.00 pay for two months, and restriction. 9. A Report of Mental Status Evaluation, dated 8 January 1986, shows the applicant had the mental capacity to understand and participate in board proceedings, and was mentally responsible. 10. The applicant's commander notified her on 22 January 1986 of his intent to initiate separation action under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel), paragraph 14-12c, for commission of a serious offense-misconduct. As the specific reason he cited, the applicant's intentional failure of the 98C course and her admission that if she were reclassified, she would fail that course also. He recommended she be separated with an UOTHC characterization of service. 11. The applicant consulted with counsel who advised her of the basis for the contemplated action to accomplish her separation for commission of a serious offense and its effects, of the rights available to her, and the effect of any action taken by her in waiving her rights. She elected not to submit a statement in her own behalf and waived representation by counsel. 12. The applicant’s commander formally recommended her discharge for misconduct under the provisions of AR 635-200, Chapter 14. 13. The separation authority's approval is not available for review. However, Orders Number 29-14, issued on 12 February 1986, by the U. S. Army Intelligence School, Fort Devens, Goodfellow AFB, reassigned the applicant for separation processing. 14. The applicant was discharged on 18 February 1986. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of AR 635-200, Paragraph 14-12c, for misconduct-commission of a serious offense (Separation Code JKQ and Reentry Codes 3/3C). She completed 1 year, 6 months, and 4 days of net active service. Her characterization of service was UOTHC. She was awarded or authorized the Expert Marksmanship Qualification Badge with Rifle Bar. 15. Soldiers are subject to separation under the provisions Army Regulation 635-200, Chapter 14, for commission of a serious offense. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. 16. On 12 June 1987, the Army Discharge Review board (ADRB) determined the applicant was properly and equitably discharged and denied her request for a change in the character and/or reason of her discharge. 17. The applicant provides: a. A self-authored statement dated 27 June 2022, which states she was fortunate to have been given the opportunity to have served. Due to her immaturity at the time, she made poor decisions. She fully understands and respects the actions taken by the Army because of her actions. She does not feel she was treated unjustly but her appeal today in the interest of justice is based on time served on record that her discharge status be upgraded. Her appeal is to apologize for her immaturity and clear her conscience of her misguided youth. Since her discharge she has worked a little retail, shipping, receiving, warehousing and mainly in the medical records field. b. A Tucson College Certificate and her professional resume. c. Character letters (three) that attest to her professionalism, positive attitude, dependability, honesty, timelessness, and pride in her work. She is thoughtful considerate, flexible and has a dedicated work ethic. She is loyal and a good friend and student. 18. In reaching its determination, the Board can consider the applicant’s petition, arguments and assertions, and service record in accordance with the published equity, injustice, or clemency guidance. 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 discharged due to misconduct after intentional failing the 98C course and her admission that if she were reclassified, she would fail that course also. She completed 1 year, 6 months, and 4 days of active service. The Board determined she was properly and equitably discharged. The applicant provides a college certificate and a professional resume, as well as three character reference letters that attest to her professionalism, positive attitude, dependability, honesty, timelessness, and pride in her work. While the Board believed her service did not rise to the level required for an honorable discharge; however, based on published DoD guidance for liberal consideration of discharge upgrade, the Board determined an upgrade of the characterization of service to general, under honorable conditions is appropriate. 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 that the evidence presented was 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 reissuing the applicant a DD Form 214 for the period ending 18 February 1986 showing: * Character of Service: General, Under Honorable Conditions * Separation Authority: No Change * Separation Code: No Change * Reentry Code: No Change 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 upgrading the characterization of her discharge to fully 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. 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. 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 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 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 (Personnel and Readiness) issued guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Navy Records (BCM/NR) on 25 July 2018, 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 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) AR20220009108 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1