IN THE CASE OF: BOARD DATE: 5 October 2023 DOCKET NUMBER: AR20230004426 APPLICANT REQUESTS: * Discharge upgrade * Change of Reentry (RE) code APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * DD Form 214 (Certificate of Release or Discharge from Active Duty), 15 October 2003 * Character Reference letters * Medical documents * Certificates 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. The applicant states in pertinent part that she served in military occupational specialty 62J (General Construction Equipment Operator). During her military service, she was unable to deploy with her assigned unit because she was pregnant (1999). While pregnant, she alleges she was assaulted by her child's father (her now ex- husband). She reported the incident to the authorities resulting in his arrest and later reduction in rank. She and her child's father later reconciled and were subsequently married. After the assault occurred, she felt like she was being punished by her command, implying that she should have never reported the incident. She later refused to proceed on a Permanent Change of Station (PCS) assignment to Korea, despite already clearing her unit of assignment. Her commander sent her home for over 40 days. During this time, she notes that she repeatedly checked in telephonically. After not receiving a response from her commander, she sought the assistance of another unit who were able to get her reassigned back to her former unit. Following her reassignment, her commander proceeded to initiate punitive action under the Uniformed Code of Military Justice (UCMJ). She sought legal assistance but was unsuccessful, so she went absent without leave (AWOL). She contests she never disclosed her reasoning for not going to Korea; however she notes that her decision was based upon threats initiated by her husband. He told her that if she PCS'd to Korea, she would never see her son again. She disputes the two periods of AWOL noted on her DD Form 214. She states that she was only AWOL once, and this occurred after her commander initiated UCMJ action. She notes that her current characterization of service precludes her from pursuing many job opportunities. Since being separated from the military, she and her child's father have divorced. She has accomplished a lot of things since departing the military to include both a bachelor's and master's degree. She notes the loss of her mother in 2012, and the subsequent depression/anxiety that resulted from her loss. She recounts the lack of support provided to her following her alleged assault. 3. A review of the applicant's available service records reflects the following: a. On 28 January 1997, the applicant enlisted in the Regular Army to serve in military occupational specialty 62J. b. On 1 May 1999, the applicant was advanced in rank to specialist (SPC)/E-4. c. On 24 April 2000, the applicant's duty status was changed from "Present for Duty (PDY)" to "Dropped from Rolls (DFR)." The constructed DA Form 4187 (Personnel Action) indicates the applicant was pending UCMJ action for a previous period of AWOL. d. On or about 7 December 2000, the applicant was apprehended by civilian authorities and returned to military control. e. On 10 December 2000, the applicant's duty status was changed from "PDY" to "AWOL" to "DFR." The constructed DA Form 4187 indicates that the applicant failed to proceed to the Special Processing Company and was therefore DFR. f. On 23 September 2003, the applicant surrendered to military authorities at Fort Benning, GA. g. On 26 September 2003, Headquarters, U.S. Army Personnel Control Facility issued Orders Number 269-1 assigning the applicant to the Special Processing Company, effective 23 September 2003. h. On 29 September 2003, her immediate commander charged her with two specifications of violating Article 86, UCMJ, for being AWOL from on or about 24 April 2000 through on or about 7 December 2000 and 10 December 2000 through 23 September 2003. i. On or about 1 October 2003, the applicant requested to be discharged in lieu of trial by court-martial. Her request was subsequently approved by members of her command channel. j. On 7 October 2003, Headquarters, U.S. Army Personnel Control Facility issued Orders Number 280-9 reducing the applicant in rank from SPC to private (PVT)/E-1, effective 2 October 2003. k. On 14 October 2003, Headquarters, U.S. Army Armor Center and Fort Knox issued Orders Number 287-0152 reassigning the applicant to the U.S. Army transition point pending discharge. l. On 15 October 2003, the applicant was discharged Under Other than Honorable Conditions in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 10 (Discharge in Lieu of Trial by Court Martial). DD Form 214, item 27 (Reentry Code) reflects "4" (ineligible to reenlist); item 29 (Dates of Time Lost During this Period) reflects "24 April 2000 – 6 December 2000 and 10 December 2000 – 22 September 2003." 4. The applicant provides: a. Character reference letter from Ms. (sister of the applicant). Ms. provides that the applicant is a hard worker who typically shows up earlier than assigned and carries herself in a respectable manner. b. Character reference letter from Mr. (former co-worker of the applicant/division manager). Mr. provides that the applicant was an excellent employee with an outstanding work ethic. He recalls the applicant's ability to lead others as demonstrated through her training and support provided. He notes the applicant's integrity, loyalty, and unselfishness as commendable traits to describe her character. c. Character reference letter from Mr. (applicant's husband). Mr. notes that he and the applicant have been married for almost 10 years. He provides reference to the applicant's current medical issues prompting her to terminate employment. He further contests that the applicant does not have a dishonorable or bad conduct discharge so she should be able to obtain medical care. d. Character reference letter from Ms. (applicant's sister). Ms. notes that as a sibling, the applicant shouldered the responsibility of taking care of the family when her mother became ill. She notes the applicant's good moral character and integrity. e. Medical documents reflective of a bilateral knee related condition treated in April 2000. f. Certificates reflective of varying achievements accomplished by the applicant to include obtaining a Bachelor of Science in Business Administration (August 2015) and Master of Science in Management degree from the Colorado Technical University in May 2017. 5. On 25 April 2023, the Army Review Boards Agency requested a redacted copy of any military sexual trauma and or military police reports pertaining to the applicant from the Department of the Army Criminal Investigation Division. On 28 April 2023, the Department of the Army Criminal Investigation Division conducted research of their records and were unable to locate any documentation related to the applicant. 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 found the evidence of post-service achievements and letters of support provided by the applicant insufficient in support of a clemency determination considering the significant amount of time she was AWOL. Based on a preponderance of evidence, a majority of the Board determined the character of service the applicant received upon separation and the assigned RE code were not in error or unjust. 3. The member in the minority found the applicant’s statement and the supporting documents she provided sufficient as a basis for clemency. The member in the minority determined the applicant’s character of service should be changed to under honorable conditions (general) but determined the RE code should not be changed. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :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 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 (Active Duty Enlisted Administrative Separations) 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. d. A discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances: * when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army * when the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army; example – abuse of position of trust, disregard by a superior of customary superior to subordinate relationship e. A discharge under other than honorable conditions may be issued without board action if the Soldier is beyond military control by reason of prolonged unauthorized absence or request to be discharged in lieu of court-martial. A Soldier who requests discharge as prescribed in Chapter 10 (in lieu of court-martial) may be discharged under other than honorable conditions if he/she has been afforded the opportunity (not less than 72 hours) to consult with a consulting counsel. f. Chapter 10 (Discharge in Lieu of Trial by Court-Martial) provides that A Soldier who has committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, 2002 (MCM 2002), includes a bad conduct or dishonorable discharge, may submit a request for discharge in lieu of trial by court- martial. Paragraph 10-8 (Types of Discharge, Characterization of Service) provides that: * a discharge under other than honorable conditions normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment * for Soldiers who have completed entry-level status, characterization of service as honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper g. Paragraph 1-35 (Eligibility/Ineligibility to Transfer to the Individual Ready Reserve (IRR)) provides that Soldiers with a remaining mandatory service obligation are ineligible for transfer to the IRR and will be discharged if they are administratively discharged with a service characterization of Under Other Than Honorable Conditions. 3. Army Regulation 601-210 (Regular Army and Reserve Enlistment Program) provides that a Reentry (RE) Code is not upgraded unless it was administratively incorrect when originally issued. RE code 4 is issued to a person separated from last period of service with a nonwaivable disqualification. This includes anyone with a Department of the Army imposed bar to reenlistment in effect at time of separation or separated for any reason (except length of service for retirement) with 18 or more years of service. Service members with this RE Code are ineligible for enlistment. 4. 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. 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. 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) AR20230004426 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1