IN THE CASE OF: 

		BOARD DATE: 19 October 2023

		DOCKET NUMBER: AR20230003854


APPLICANT REQUESTS:  upgrade of her under other than honorable conditions 
(UOTHC) discharge, and change of the corresponding narrative reason for separation, 
separation code, and reentry eligibility (RE) code.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD:

*	DD Form 149 (Application for Correction of Military Record)
*	Letter from counsel
*	Legal brief
*	Exhibit A – Service Record
*	Exhibit B – Personal Statement
*	Exhibit C – Statement from 
*	Exhibit D –Obituary
*	Exhibit E – Army Regulation 635-200 (Personnel Separations – Enlisted 
Personnel, 26 July 1996)
*	Exhibit F – Statement from Applicant's Father
*	R. L. Wilkie, Under Secretary of Defense, memorandum, Subject: 
Guidance to Military Discharge Review Boards and Boards for Correction 
of Military/Naval Records (BCM/NR) Regarding Equity, Injustice, or 
Clemency Determinations, dated 25 July 2018

FACTS:

1.  The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code 
(USC), 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.  Through counsel, the applicant states equity supports granting the requested relief 
because Army Regulation 635-200, Chapter 6, allows for separation on the grounds of 
dependency and hardship, and the applicant faced dependency conditions that resulted 
in her discharge UOTHC in lieu of trial by court-martial. 

3. Counsel provides a legal brief, Exhibits A-F, and the Wilkie Memorandum which are 
available in their entirety for the Board's consideration.

     a.  Counsel contends the applicant satisfied most of the criteria for separation based 
on dependency and her quality of service and capability to serve should weigh in favor 
of upgrading her discharge. Reviewing her entire file through the Wilkie Memorandum's 
lens supports an upgrade.

     b.  While still in high school prior to entering the Army, the applicant provided 
childcare for her godfather's family and was a constant in the children's lives. She 
cleaned, cooked, bathed, and did anything else the children needed. During basic 
training, her godfather was involved in a serious automobile accident that left him 
paralyzed. The applicant was granted emergency leave for a weekend to visit him and 
then returned promptly due to her commitment to the military.

     c.  Shortly after returning to duty, the applicant learned her godfather's wife 
abandoned him and the children. The applicant was compelled to help and went absent 
without leave (AWOL) from service for approximately 8 months and 13 days so she 
could take care of her godfather and his children. 

     d.  Upon her return to base, she elected to request a discharge UOTHC in lieu of trial 
by court-martial and was ultimately separated. Her actions were not driven by any 
desire to abandon the military, rather, her actions were motivated by her need to care 
for those who, at the time, were physically incapable of caring for themselves. She 
continued to care for her godfather and his children up until her godfather's passing in 
2009. She has faced numerous personal difficulties following her separation, 
understands the severity of her lapse in judgment, and feels great remorse as a result of 
her actions.

     e.  The Wilkie Memorandum authorizes BCM/NRs to grant relief in order to ensure 
fundamental fairness. While the memorandum does not mandate relief, it provides 
standards and principles to guide Boards in the application of their equitable relief 
authority. The applicant sacrificed her military career to care for her paralyzed godfather 
and his children and that should be considered with military custom and practice to 
honor sacrifices and achievements, to punish only to the extent necessary, to 
rehabilitate to the greatest extent possible, and to favor second chances in situations in 
which individuals have paid for their misdeeds.

     f.   Pursuant to the Department of Defense and Army Regulations, enlisted service 
members may be separated "for convenience of the U.S. Government" for reasons of 
dependency or hardship. “Dependency exists when death or disability of a member of a 
soldier's ... immediate family causes that member to rely upon the soldier for principal 
care or support." Separation from service "because of dependency will be granted when 
all of the following circumstances exist: (1) conditions have arisen or have been 
aggravated to an excessive degree since entry on Active Duty (AD) or AD for Training 
(ADT); (2) conditions are not of a temporary nature; (3) every reasonable effort has 
been made by the soldier to alleviate the dependency ... conditions without success"; 
and "(4) separation from active military service of the soldier is the only readily available 
means of eliminating or materially alleviating the dependency ... conditions. "Counsel 
contends the applicant met this criteria because the disability of her godfather caused 
him to rely upon her for principal care or support.

     g.  Army Regulation 635-200's definition of "immediate family" should not bar 
application of the "in loco parentis" exception for dependency-based separation. 
According to the applicant's biological father, she did live with her godfather from when 
she was approximately 16 years old up until she joined the Army. Although this falls 
short of the five years required by Army Regulations, the applicant’s history with her 
godfather is akin to being "members of the immediate family." Specifically, her father 
and godfather were best friend for 15-20 years and she took care of and pretty much 
raised the children since they were born because both her godfather and his wife 
worked.

     h.  In order for her discharge to be considered equitable the applicant's entire record 
of service must be taken into consideration. This includes her service history, awards 
and decorations, level of responsibility, length of service, outstanding post-service 
conduct, records of periods of absence, and records relating to a discharge instead of 
court-martial. Relatedly, and relevant to the applicant's capability to serve, are family 
and personal problems, which include matters in extenuation or mitigation of the reason 
for discharge that may have affected the applicant's ability to serve satisfactorily.

     i.  Exhibit A consists of the applicant's entire Official Military Personnel File.

     j.  Exhibit B is a personal statement rendered by the applicant wherein she provides 
a brief history of her family and her childhood. She explains her reason for going AWOL 
was to care for her godfather and his children after his wife abandoned them. In addition 
to caring for them, she married and had two children of her own. She has overcome 
numerous challenges in her family life. She is not proud of the manner in which she 
returned home, but knows it was the best decision under the circumstances at the time.

     k.  Exhibit C is a guided statement questionnaire rendered by, the applicant's former 
sister-in-law, who confirms the facts that the applicant lived with her godfather and 
cared for him and his children before and after his accident.

     l.  Exhibit D is the applicant's godfather's obituary and several memories and 
condolences shared by people who knew him.

     m.  Exhibit E is a copy of Army Regulation 635-200, dated 26 June 1996.

     n.  Exhibit F is a statement rendered by the applicant's father wherein he describes 
his relationship with the applicant's godfather and explains how she cared for him and 
his children before and after his accident when his wife abandoned them.

4.  On 18 June 1997, the applicant enlisted in the Regular Army for a period of 4 years. 
Upon completion of initial entry training, she was assigned to a unit at Fort Campbell, 
KY.

5.  Changes in the applicant's duty status were reported as follows:

*	3 March 1998 - from Present for Duty (PDY) to AWOL
*	3 April 1998 - from AWOL to Dropped from Rolls (DFR)
*	14 February 1999 - from DFR to Returned to Military Control after being 
apprehended by civil authorities

6.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against 
the applicant on 19 February 1999, for violation of Article 86 of the Uniform Code of 
Military Justice (UCMJ). Specifically, for being AWOL from on or about 3 March 1998 
until on or about 14 February 1999.

7.  On 19 February 1999, the applicant voluntarily requested discharge under the 
provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial. She 
consulted with legal counsel and was advised of the basis for the trial by court-martial; 
the maximum permissible punishment authorized under the UCMJ; the possible effects 
of a UOTHC discharge; and the procedures and rights that were available to her. She 
elected not to submit statements in her own behalf.

8.  On 25 August 1999, her immediate commander recommended approval of the 
request with her service characterized as UOTHC. 

9.  The separation authority's final decision is not present in the applicant's available 
record. However, orders and the applicant's DD Form 214 (Certificate of Release or 
Discharge from Active Duty) confirm she was discharged on 8 June 2000 in the 
rank/pay grade of private/E-1, under the provisions of Army Regulation 635-200, 
Chapter 10. The narrative reason for her separation was "In Lieu of Trial by Court-
Martial." Her Separation Program Designator (SPD) code was "KFS", and her RE code 
was "4." She was credited with completing 2 years and 3 days of net active service this 
period. She had time lost from 3 March 1998 until 13 February 1999, and did not 
complete her first full term of service. She was awarded or authorized the Army Service 
Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Marksman 
Marksmanship Qualification Badge with Rifle Bar.
10.  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 Army Regulation 635-200, 
Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by 
court-martial. A characterization of UOTHC is authorized and normally considered 
appropriate.

11.  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 Department of Defense guidance for 
consideration of discharge upgrade requests. The Board considered the applicant's and  
counsel’s statements, the applicant’s record of service, the frequency and nature of her 
misconduct, the reason for her separation, and whether to apply clemency. The Board 
found insufficient evidence of in-service mitigating factors and 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 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 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.


REFERENCES:

1.  Title 10, USC, Section 1552(b), provides that applications for correction of military 
records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in 
the interest of justice to do so.

2.  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 regulation provides that the ABCMR begins its consideration of each case with the 
presumption of administrative regularity. The applicant has the burden of proving an 
error or injustice by a preponderance of the evidence. It is not an investigative body. 

3.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the 
separation of enlisted personnel.

	a.  Chapter 10 stated a member who committed an offense or offenses for which the 
authorized punishment included a punitive discharge could, 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 was to be discharged UOTHC, the separation authority would 
direct an immediate reduction to the lowest enlisted grade.

     e.  Chapter 6 stated Soldiers of the Active Army and the Reserve Components 
serving on AD or ADT may be discharged or released because of genuine dependency 
or hardship.

          (1)  Dependency. Dependency exists when death or disability of a member of a 
Soldier's (or spouse's) immediate family causes that member to rely upon the Soldier for 
principal care or support.

          (2)  Hardship. Hardship exists when in circumstances not involving death or 
disability of a member of the Soldier's (or spouse's) immediate family, separation from 
the Service will materially affect the care or support of the family by alleviating undue 
and genuine hardship. 

     f.  In determining the eligibility for separation, "members of the immediate family" 
include only spouse, children, father, mother, brothers, sisters, only living blood relative, 
or any person who stood "in loco parentis" to the Soldier(or spouse) before entry into 
the service. "In loco parentis" is any person who has stood in the place of a parent to 
the Soldier (or spouse) for a continuous period of at least 5 years before he or she 
reached 21 years of age.

4.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory 
or directive), reasons for separating Soldiers from active duty, and the separation codes 
to be entered on the DD Form 214. It states that the separation code "KFS" is an 
appropriate code to assign to Soldiers separated under the provisions of Army 
Regulation 635-200, Chapter 10, by reason of In Lieu of Trial by Court-Martial. Reentry 
Code 4 is the appropriate corresponding reentry eligibility code.

5.  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)	AR20230003854


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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


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