IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230003118 APPLICANT REQUESTS: upgrade her under other than honorable conditions discharge to an honorable character of service. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for Army Discharge Review Board) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * Two DD Forms 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10 (Armed Forces), United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, in effect, a military judge told her she would be eligible for an upgrade after 6 months. 3. A review of the applicant's service record shows the following: a. On 5 April 1990, after obtaining her parent's consent, the applicant enlisted into the Indiana Army National Guard (INARNG) for 8 years; she was 17 years old. On 10 June 1990, she entered initial active duty for training (IADT) to complete her initial entry training (IET). (1) On 31 October 1990, following the award of military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist), orders released the applicant from active duty and returned her to her INARNG unit. (2) Her DD Form 214 shows she completed 4 months and 21 days of net active duty; item 24 (Character of Service) states, "Uncharacterized." b. On 11 April 1994, the applicant requested permission to enlist into the Regular Army. On 23 August 1994, the INARNG honorably discharged the applicant and transferred her to the U.S. Army Reserve Control Group (Annual Training). On 3 October 1994, the applicant enlisted into the Regular Army for 3 years. On 11 October 1994, the applicant arrived at Fort Hood, TX, and orders further assigned her to a general supply company. c. On 5 August 1995, the applicant's Fort Hood unit reported her as absent without leave (AWOL), and, on 4 September 1995, the unit dropped her from its rolls. (1) On or about 4 September 1995, the applicant's company commander completed a DA Form 4384 (Commander's Report of Inquiry/Unauthorized Absence); the commander attributed the AWOL to the applicant's indebtedness and stated, "Soldier was behind on bills and apartment rent. She was sending her sons to live with father while she moved into the barracks and paid bills." (2) On 9 September 1995, the applicant's first sergeant (1SG) rendered a sworn statement pertaining to the applicant. (a) The 1SG indicated that, on 2 August 1995, he discussed the applicant's financial problems with the applicant's platoon leader and section sergeant; the section sergeant proposed having the applicant send her sons home and moving the applicant back into the barracks so she could catch up on her bills. (b) On 31 July 1995, the unit placed the applicant on leave so she could gather her financial records and apply for an Army Emergency Relief loan. The last anyone saw of the applicant was on 2 August 1995. (c) On 24 August 1995, the applicant called the 1SG and asked if she was in trouble; the 1SG told her she would likely face disciplinary action under the Uniform Code of Military Justice (UCMJ), to which she replied that she could "handle that." The applicant then committed to returning on Monday, 28 August 1995. However, on 28 August 1995, the applicant's mother telephoned stating she was going to bring the applicant back to Fort Hood, on 29 or 30 August 1995; that was the last thing anyone heard about the applicant. d. On 4 September 1996, civil authority arrested the applicant and returned her to military control; orders subsequently reassigned the applicant to the U.S. Army Personnel Control Facility (PCF) at Fort Knox, KY. e. On 6 September 1996, the PCF preferred court-martial charges against the applicant for having been AWOL, from 5 August 1995 to 4 September 1996 (396 days). On 6 September 1996, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of chapter 10 (Discharge in Lieu of Trial by Court- Martial), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). (1) In her request, she affirmed she was acting of her own free will and acknowledged she was guilty of the charge against her. In addition, she elected not to submit statements in her own behalf. (2) Upon submission of her separation request, the PCF authorized the applicant to take indefinite excess leave, and she departed Fort Knox, on 6 September 1996. f. On 9 October 1996, the separation authority approved the applicant's separation request and directed her under other than honorable conditions discharge; in addition, the separation authority ordered the applicant's reduction to the lowest enlisted grade. On 23 January 1997, orders discharged the applicant accordingly. Her DD Form 214 shows she completed 1 year, 2 months, and 15 days of her 3-year enlistment contract. 4. 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. 5. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, and published Department of Defense guidance for consideration of discharge upgrade requests. The Board considered the applicant's statement, her record of service, the frequency and nature of her misconduct, the reason for her separation and whether to apply clemency. 2. A majority of the Board found insufficient evidence of in-service mitigating factors and noted 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, a majority of the Board determined the character of service the applicant received upon separation was not in error or unjust. 3. The member in the minority found the applicant’s financial and parenting situation that led her to go AWOL as a junior enlisted Soldier merit clemency. The member in the minority determined the applicant’s character of service should be changed to honorable. 4. The Board concurred with the correction described in Administrative Note(s) below. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: Other than the correction addressed in Administrative Note(s) below, the Board determined 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 otherwise insufficient as a basis for correction of the records of the individual concerned. 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): While serving in the Army National Guard, the applicant completed a period of initial entry training during which she was completed training for a military occupational specialty. Under current regulations, this period of service would be characterized as honorable, and this standard is applied retroactively. As a result, reissue the applicant’s DD Form 214 for the period ending 31 October 1990 to show her character of service as honorable. REFERENCES: 1. Title 10, USC, 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, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge) stated an honorable discharge was separation with honor. (1) Issuance of an honorable discharge certificate was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty or was otherwise so meritorious that any other characterization would clearly be inappropriate. (2) Where there were infractions of discipline, commanders were to consider the extent thereof, as well as the seriousness of the offense. Separation authorities could furnish an honorable discharge when the Soldier's subsequent honest and faithful service over a greater period outweighed the disqualifying entries found in his/her record. It was the pattern of behavior, and not the isolated instance, which commanders should consider as the governing factor. b. Paragraph 3-7b (General Discharge). A general discharge was a separation under honorable conditions and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 applied to Soldiers who had committed an offense or offenses for which the punishment under the UCMJ included a punitive (i.e. bad conduct or dishonorable) discharge. (1) Soldiers could voluntarily request discharge once charges had been preferred; commanders were responsible for ensuring such requests were personal decisions, made without coercion, and following being granted access to counsel. The Soldier was to be given a reasonable amount of time to consult with counsel prior to making his/her decision. (2) The Soldier was required to make his/her request in writing, which certified he/she had been counseled, understood his/her rights, could receive an under other than honorable conditions character of service, and recognized the adverse nature of such a character of service. 3. The Manual for Courts-Martial in effect at the time showed violations of Article 86 (AWOL for more than 30 days) included punitive discharges among its maximum punishments. 4. AR 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated when a separation authority determined a Soldier was to be discharged from the Service under other than honorable conditions, the regulation required the separation authority to reduce that Soldier to the lowest enlisted grade. Board action was not required for this reduction. 5. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230003118 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1