BOARD DATE: 27 May 2010 DOCKET NUMBER: AR20090020241 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that her special court-martial conviction be set aside. 2. The applicant states that while in Korea, she was court-martialed based on trumped up charges and she lost rank as a result. She also states that the events that led to her court-martial action were stressful and for a long time she was unable to talk about what really occurred. 3. The applicant provides a copy of her birth certificate as well five self-authored statements in support of her request. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show she enlisted in the Regular Army on 18 July 1980 for a period of 3 years in the rank/grade of private first class (PFC)/E-3 and she held military occupational specialty 72E (Telecommunications Center Operator). The highest rank/grade she attained during her military service was specialist four (SP4)/E-4. 3. Her records also show she served in Korea from on or about 1 September 1981 to 20 October 1982. She was assigned to 102nd Military Intelligence Battalion, 2nd Infantry Division. 4. On 14 September 1982, she pled not guilty at a special court-martial to one specification of assaulting a local national by spitting in her face; two specifications of disrespecting an officer in word or deportment; and one specification of disobeying a lawful order from a commissioned officer. The court found her guilty of assaulting a local national and disobeying a lawful order from a commissioned officer and sentenced her to a reduction to private (PV2)/E-2 and a forfeiture of $412.00 pay for 3 months. 5. On 1 November 1982, the convening authority approved her sentence and ordered it executed. 6. She was honorably discharged on 17 July 1983 due to expiration term of service in the rank/grade of SP4/E-4. The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed 3 years of creditable active service. 7. She provided the following documents: a. An undated self-authored statement wherein she states that in September 1982, a local house keeper in Korea used cheap bleach and washing powder to wash her clothes. She reported her to her sergeant but the house keeper told a lie. Her lieutenant brought up charges against her and ultimately destroyed her military career. b. In a second undated self-authored statement, she describes an incident where she was sexually assaulted by another service member and the assault led to pregnancy. She was depressed, embarrassed, and ashamed. Ultimately she had a miscarriage and she never reported the "rape." c. In a third self-authored statement, dated 10 February 2010, she states that she cannot wait too long for the Board to render a decision on her case because she has a death sentence over her head. She has kidney failure and she does not want to go on a dialysis machine. d. In a fourth undated self-authored statement, she states that during her court-martial action, her confidentiality was violated. The charges were made up by the lieutenant, the local house-keeper, and a sergeant. She also contends that no one can locate her medical records or a record of her military service. The Army let her down in that the charges were fabricated and her military career was destroyed. e. In a fifth self-authored letter she states that she heard from many Soldiers in her unit in Korea that the lieutenant who brought up the charges against her was gay. The lieutenant socialized with several female Soldiers back then and everybody knew she was gay. She also lists several names and encounters between Soldiers of her unit at the time. 8. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the Official Military Personnel File (OMPF). Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Table 2-1 (Composition of the OMPF) shows that court-martial orders are filed in the performance section of the OMPF when there is an approved finding of guilty on at least one specification. 9. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which 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-martial process 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends her court-martial conviction should be set aside. 2. The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. The conviction was effected in accordance with applicable law and regulations. By law, any redress of the finality of a court-martial conviction is prohibited. The ABCMR is only empowered to set aside a conviction if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 3. The applicant's personal recollection of the events that occurred in 1982 were considered. However, there is no evidence in her records and she does not submit any substantiating evidence that shows her court-martial was unfair, inequitable, or improper. She has not shown any error, injustice, or that the sentence was too harsh. Therefore, she has established no basis for clemency. 4. The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and any corrections to other parts of the OMPF. Once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed unless directed by an appropriate authority. 5. The Army has an interest in maintaining the consistency of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. As required by the applicable regulation, the court-martial order is properly filed in her OMPF. 6. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. She did not submit evidence that would satisfy this requirement. Therefore, there is insufficient evidence to grant her the requested relief. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __x_____ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20090020241 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090020241 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1