RECORD OF PROCEEDINGS


	IN THE CASE OF:	 

	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070001496 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  


Ms. Catherine C. Mitrano

Director

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Qawiy A. Sabree 

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests her under other than honorable conditions discharge be upgraded so that she can receive medical benefits.

2.  The applicant states, in effect, that the punishment did not fit the crime.  The applicant contends that while on medication for medical conditions sustained while on active duty, she walked out of the Post Exchange with items that she did not pay for.  The applicant argues that she was already given a disability rating and had advised her doctors of "losing time" and having "no control" over her actions.  The applicant states that she knows stealing is wrong and thought by pleading guilty; the extenuating circumstances would have been taken into consideration.  

3.  The applicant continues that she was advised by her attorney to wait until she received her discharge orders and DD Form 214 (Certificate of Release or Discharge from Active Duty) before applying for an upgrade.  The applicant concludes that she should have been allowed to medically retire because she was under medical care at the time of her discharge.

4.  The applicant provides a self-authored diagnosis/surgical history statement; a 12 June 1996, Memorandum for Action; a 6 June 1997 letter from The US Army Physical Evaluation Board; a 21 July 1997 Memorandum for the General Court-Martial Convening Authority; a 25 July 1997 US Trial Defense Service Memorandum; a three-page self-authored statement from the applicant; Headquarters, 21st Theater Army Area Command, General Court Martial Order Number 15, dated 8 August 1997; Headquarters Department of the Army General Court Martial Order Number 26, dated 9 October 2002; Headquarters, US Army Armor Center and Fort Knox Order Number 048-0154,dated 
17 February 2005; and her DD Form 214 in support of this application.

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 complete military service records are not available for review with this case; however, there are sufficient records available to conduct a thorough review of the applicant's request.

3.  On 1 August 1994, the applicant accepted an Article 15 offered by her commander for stealing property of a value of approximately $28.00 from the Navy Exchange on or about 26 June 1994.  The commander imposed a punishment consisting of forfeiture of $100.00 per month for two months.  The applicant did not appeal the punishment.

4.  On 6 June 1997, the applicant was notified that her formal Physical Evaluation Board (PEB) hearing was scheduled for 30 July 1997.  The PEB findings are not available for review with this case.

5.  The applicant provided a 21 July 1997 Memorandum for the General Court-Martial Convening Authority.  This memorandum was prepared by a medical corps major who specialized in internal medicine.  The author stated that the applicant was diagnosed with Fibromyalgia.  The author defined Fibromyalgia as a disorder which causes pain to the muscles and joints.  He continued that he referred the applicant to the medical review board because she could no longer work productively in the Army because of her medical condition.

6.  The applicant provided a second 21 July 1997 Memorandum for the General Court-Martial Convening Authority.  This memorandum was prepared by a medical corps lieutenant colonel identified as an ear, nose, and throat specialist.  The author stated that he had been treating the applicant since February 1997 for vertigo.  He further stated that vertigo is a sub-problem of Fibromyalgia which is a painful connective tissue disorder.  He further diagnosed the applicant with temporal mandibular joint (TMJ) disorder.  The author concludes that the applicant's condition is chronic and her overall functioning has decreased.  

7.  The applicant provided a 25 July 1997, United States Trial Defense Service Memorandum.  In this memorandum, the Trial Defense Counsel requested that the Commander of the 21st Theater Army Area Command disapprove the applicant's dismissal.  The Trial Defense Counsel stated that clemency would be a fair and adequate remedy because it would allow the applicant access to medical care that she desperately needs.  The response to this request is not in the available records.

8.  On 8 August 1997, the applicant pled guilty before a military judge sitting alone at a general court-martial to larceny of property of a value of over $100.00, on or about 24 January 1997 and conduct unbecoming an officer on or about 24 January 1997.  The military judge sentenced the applicant to dismissal

9.  General Court Martial Order Number 26, dated 9 October 2002 shows that the convening authority approved the findings of guilt and approved the sentence.  This order further shows that the applicant ceased to be an officer of the US Army at midnight on 25 October 2002.

10.  Headquarters, US Army Armor Center and Fort Knox Order Number 
048-0154, dated 17 February 2005, show that the applicant was discharged effective 25 October 2002.

11.  The applicant's DD Form 214 shows that she was discharged as a result of court-martial on 25 October 2002, under the provisions of Army Regulation 
600-8-24, with the separation code JJD and the Reentry code “NA."  This form further shows the applicant's character of service as under other than honorable conditions. 

12.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records 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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

14.  Army Regulation 600-8-24 ((Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  Paragraph 5-17 of this regulation provides the rules for processing dismissal of an officer due to general courts-martial proceedings.  Specifically, it states that an officer convicted and sentenced to dismissal as a result of General Court-Martial proceedings will be processed pending appellate review of such proceedings as follows:  An Regular Army officer will be retained on active duty until the appellate review is completed or placed on excess leave in accordance with Army Regulation 600-8-10;  An Reserve Component officer may be released from active duty pending completion of the appellate review, under paragraphs 2-33 and 2-34, or placed on excess leave in accordance with Army Regulation  600-8-10 in lieu of REFRAD.  The Human Resources Command will make the final determination regarding retention or separation. Separation instructions will be issued by HRC-Alexandria (AHRC-OPD-A) to the appropriate PSC/MPD. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her under other than honorable conditions discharge should be upgraded so that she can receive medical benefits was carefully considered and determined to be without merit.

2.  The applicant's records clearly show that she committed acts unbecoming of an officer on at least two occasions by shoplifting items from the Navy Exchange and the Army Post Exchange.  Additionally, the applicant was tried and convicted by a General Court-Martial for shoplifting and conduct unbecoming an officer.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  The applicant contends that she committed these acts as a result of her medical condition.  There is no evidence in the available records and the applicant has provided insufficient evidence which shows that there was a direct correlation between her acts of indiscipline and her diagnosed medical conditions.  

6.  After review of the applicant’s entire record of service, it is clear that her service did not meet the criteria for an honorable discharge.  As a result, there is insufficient basis for a grant of clemency in the form of an honorable discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_CLG___  __JRS___  _QAS___   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.





__Curtis L. Greenway___
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.