IN THE CASE OF: 
BOARD DATE:  4 October 2023 
DOCKET NUMBER: AR20230002691 


APPLICANT REQUESTS:  an upgrade of her bad conduct discharge (BCD) 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 self-authoredstatement

•email, additional statement, dated 8 March 2020

•DD Form 214 (Certificate of Release or Discharge from Active Duty), for theperiod ending 18 December 2009

•two statements of support, dated 7 March 2020

•letter, Department of Veterans Affairs (VA), dated 14 November 2022



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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states, in effect:

a.She joined the Army, attended elite schools, and excelled above her male peerswhich caused jealousy towards her. Therefore, her seniors and peers failed to submit her Noncommissioned Officer Evaluation Report (NCOER) out of envy. After her command failed to submit her NCOER, she signed their names and submitted it. 

b.In an additional email statement, dated 8 March 2020, she stated she served forover 17 years without any misconduct. Her NCOER was not submitted on time which caused her to have unrated time. She strongly felt she should have received her NCOER. She wrote her own NCOER and signed her senior rater’s name. This was something she had done before, but this time she was cited for it. She felt she was discriminated against. 

3.The applicant enlisted in the Regular Army on 29 December 1989 for a 3-yearperiod. She subsequently reenlisted on four occasions. The highest rank she attainedwas sergeant first class/E-7.

4.An Investigating Officer (IO) Appointment memorandum, dated 7 April 2003, showsan investigation was initiated, pursuant to Army Regulation 15-6 (Procedures forAdministrative Investigations and Boards of Officers), to determine the events andcircumstances surrounding an NCOER submitted by the applicant and the allegationsthat it was not created or signed by her rating chain at her last duty station.

5.A DA Form 1574 (Report of Proceedings by IO/Board of Officers), dated 6 May2003, shows the IO determined the NCOER submitted by the applicant was not signedby her chain of command. The NCOER submitted by the applicant, and thereconstructed NCOER submitted by her chain of command had significant differences.The IO stated it seemed as though [the applicant] tried to submit an NCOER that wasnot created or signed by her previous chain of command.

6.The applicant’s commander initiated a DA Form 268 (Report to Suspend FavorablePersonnel Actions [FLAG]) on 13 August 2003 by reason of adverse action.

7.The applicant accepted nonjudicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice, on 25 August 2003, for altering an official record,with the intent to deceive, on or about 10 March 2003. Her punishment consisted offorfeiture of $1,444.00 pay per month for two months, extra duty for 30 days, and awritten reprimand. The applicant acknowledged receipt of the punitive reprimand on
20 September 2003.

8.The applicant accepted nonjudicial punishment, under the provisions of Article 15 ofthe Uniform Code of Military Justice, on 13 October 2005, for disrespecting a superiorcommissioned officer, disobeying a lawful command from a superior commissionedofficer, and two occasions of disobeying a lawful order from a warrant officer, on orabout 17 September 2005. Her punishment consisted of forfeiture of $758.00 pay andextra duty for 14 days.

9.Court-martial charges were preferred against the applicant for violations of theUniform Code of Military Justice; however, the relevant DD Form 458 (Charge Sheet) isnot available for review.

10.Special Court-Martial Order Number 30, issued by Headquarters, 82nd AirborneDivision, Fort Bragg, NC, dated 30 November 2006 shows the applicant was foundguilty of submitting false official documents, to wit: a DA Form 2166-8 (NCOER), anappeal letter, and 82nd Airborne reassignment orders, to the U.S. Army EnlistedRecords and Evaluation Center, with the intent to deceive, on or about 21 November2005. The sentence was adjudged on 13 June 2006. She was sentenced to be reduced to the rank of private/E-1 and to be discharged from service with a BCD. The sentence was approved, except for the portion of the sentence extending to a BCD and ordered executed. The record of trial was forwarded to the U.S. Court of Criminal Appeals for appellate review. 

11.The U.S. Court of Criminal Appeals upheld the findings of guilty and the sentenceas approved by the convening authority. Accordingly, the findings of guilty and thesentence were affirmed on 30 January 2009.

12.The U.S. Court of Appeals for the Armed Forces denied the applicant’s petition forreview on 2 September 2009.

13.Special Court-Martial Order Number 136, issued by Headquarters, U.S. ArmyArmor Center, Fort Knox, KY, on 15 October 2009, shows the sentence was finallyaffirmed, the provisions of Article 71(c) had been complied with, and the BCD wasordered duly executed.

14.The applicant was discharged on 18 December 2009, under the provisions of ArmyRegulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 3, byreason of court-martial, other. Her DD Form 214 confirms her service was characterizedas bad conduct. She was credited with 19 years, 11 months, and 20 days of net activeservice. Her awards include:

•Army Commendation Medal

•Joint Service Achievement Medal

•Army Achievement Medal

•Army Good Conduct Medal (4th award)

•National Defense Service Medal

•Armed Forces Expeditionary Medal

•Global War on Terrorism Expeditionary Medal

•Korean Defense Service Medal

•Humanitarian Service Medal (2nd award)

•Noncommissioned Officer Professional Development Ribbon

•Army Service Ribbon

•Overseas Service Ribbon (3rd award)

•North Atlantic Treaty Organization Medal

•Master Parachutist Badge

•Senior Parachutist Badge

•Parachutist Badge

•Air Assault Badge



15.The applicant provides the following:

a.In two statements of support, one dated 7 March 2020, the authors attest to theapplicant’s integrity and trustworthiness. 

b.A VA Rating Decision, dated 14 November 2022, shows the VA determined theapplicant was not eligible for VA benefits based upon her BCD. 

16.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, the ABCMR is not empowered to set aside a conviction. Rather,it is only empowered to change the severity of the sentence imposed in the court-martialprocess and then only if clemency is determined to be appropriate. Clemency is an actof mercy or instance of leniency to moderate the severity of the punishment imposed.

17.Regulatory guidance provides a Soldier will receive a BCD pursuant only to anapproved sentence of a general or special court-martial. The appellate review must becompleted, and the affirmed sentence ordered duly executed.


BOARD DISCUSSION: 

1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that partial relief was warranted. The Boardcarefully considered the applicant's record of service, documents submitted in supportof the petition and executed a comprehensive and standard review based on law, policyand regulation, and published Department of Defense guidance for liberal and clemencydeterminations requests for upgrade of her characterization of service.  Upon review ofthe applicant’s petition and available military records, the Board found insufficientevidence of in-service mitigating factors to overcome the misconduct. The applicantprovided insufficient post-service achievements and the Board carefully considered hercharacter letter of support to weigh a clemency determination. ABCMR is onlyempowered to change the severity of the sentence imposed in the court-martial processand then only if clemency is determined to be appropriate.

2.The Board considered the applicant’s entire record to include her length of serviceand her honorable service prior to the misconduct. However, the Board found herdisrespecting a superior commissioned officer, disobeying a lawful command from asuperior commissioned officer, and two occasions of disobeying a lawful order from awarrant officer as well as forgery could not be mitigated. During deliberation, the Boarddetermined the applicant had prior periods of honorable service which is not currentlyreflected on her DD Form 214 and recommended that change be completed to moreaccurately 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 arecommendation for partial relief. As a result, the Board recommends that allDepartment of the Army records of the individual concerned be corrected by adding thefollowing additional statement to item 18 (Remarks) of her DD Form 214 for the periodending 18 December 2009 to show:

•SOLDIER HAS COMPLETED FIRST FULL TERM OF SERVICE

•CONTINUOUS HONORABLE SERVICE FROM 19891229 UNTIL 20001101



2.The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much ofthe application that pertains to an upgrade of her bad conduct discharge (BCD).



Microsoft Office Signature Line...
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):  N/A 


REFERENCES: 

1.Title 10, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (ABCMR) prescribes the policies and procedures forcorrection of military records by the Secretary of the Army, acting through the ABCMR.
The regulation provides the ABCMR may, in its discretion, hold a hearing. Applicants donot have a right to a hearing before the ABCMR. The Director or the ABCMR may granta formal hearing whenever justice requires.

3.Army Regulation 635-5 (Personnel Separations) provides for an additional entry onthe DD Form 214 for continuous honorable active service when a Soldier whopreviously reenlisted without being issued a DD Form 214 was discharged with anycharacterization of service except honorable.

4.Army Regulation 635-200, provides for the separation of enlisted Soldiers from theArmy. It states when a Soldier is to be discharged under other than honorableconditions, the separation authority will direct an immediate reduction to private E – 1, inaccordance with Army Regulation 600–8–19 (Enlisted Promotions and Reductions).

a.Chapter 3 provides that an enlisted person will be given a bad conduct dischargepursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. 

b.An honorable discharge is a separation with honor and entitles the recipient tobenefits 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. 

5.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, USC, Section 1552, the authority underwhich this Board acts, the ABCMR is not empowered to set aside a conviction. Rather,it is only empowered to change the severity of the sentence imposed in the court-martialprocess and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 
 
6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (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//