RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  18 September 2007
	DOCKET NUMBER:  AR20070002901 


	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

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Ms. Laverne V. Berry

Member

Mr. Ronald D. Gant

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, in effect, that her discharge be upgraded.

2.  The applicant states "the wrong information was released to the State of Ohio Board of Nursing" and she further states that "the information regarding me with a weapon and a few other charges that are incorrect."  In effect, she states the charges for which she was convicted by general court-martial are incorrect.

3.  The applicant did not provide any supporting documentation in support of her application.  However, she stated that she has proof that she is a Licensed Practical Nurse (LPN) for 11 years and that she is seeking authorization to become a Registered Nurse (RN). 

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 that she enlisted in the Regular Army on 17 August 1989.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 75B (Personnel Administration Specialist).  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.

3.  The applicant's service records show that she was absent without leave during the period 19 December 1990 through 26 December 1990.  Upon voluntary return from AWOL, the applicant was placed in pre-trial confinement, pending completion of general court-martial proceedings. 

4.  The applicant was tried by a general court-martial on 27 December 1990.  She was charged with:

	a.  Violation of the Uniform Code of Military Justice (UCMJ), Article 92, one specification; in that she did, on/about 20 October 1990, violate a lawful general regulation by not safeguarding her M-16A2 rifle.

	b.  Violation of the UCMJ, Article 121, two specification; in that she did on/about 29 June 1990, steal US currency in the amount of $200.00, and; in that she did on/about 24 November 1990, steal personal property of a value of $502.45.

	c.  Violation of the UCMJ, Article 81, one specification; in that she did on/about 24 November 1990, conspire with another to commit larceny of personal; property of a value of $831.85.

	d.  Violation of the UCMJ, Article 134, in that she did, on/about 6 July 1990, unlawfully make a false statement.

5.  The applicant pled guilty to all charges and specifications.  In accordance with her pleas, she was found guilty and was sentenced to reduction to Private E-1, forfeiture of all pay and allowances, confinement for 2 years, and a bad conduct discharge (BCD).

6.  The findings and sentence in the case were approved on 9 May 1991, and affirmed by the United States Army Court of Criminal Appeals on 23 May 1991.  On 6 September 1991, General Court-Martial Orders Number 347, U.S. Army Correctional Brigade, Fort Riley, Kansas, directed that the discharge be executed and that part of the sentence pertaining to confinement in excess of 21 months be suspended for 21 months, with provisions for automatic remission.

7.  On 27 January 1992, the applicant was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations), as a result of court-martial, with a bad conduct discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued confirms she completed a total of 1 year, 3 months, and 27 days of creditable active military service with 404 days of lost time due to AWOL and confinement.

8.  Title 10, United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.


9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3, paragraph 13-11, provides that a bad conduct discharge will be issued pursuant to an approved sentence of a general court-martial, after completion of the appellate review, and the sentence has been affirmed and ordered duly executed.

10.  Army Regulation 635-200, paragraph 3-7a, 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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that 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.  A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her discharge should be upgraded because she is trying to take a test to become a Registered Nurse and that the information in her DD Form 214 is not correct, thereby presumably stopping her from accomplishing her goal.  Unfortunately, she does not specify in detail what information is incorrect.

2.  The applicant’s military record indicates that her trial by general court-martial on 27 December 1990 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.

3.  The applicant's DD Form 214 is completely correct as written.  None of the issues the applicant's specific charges, pleas, or findings is contained on the DD Form 214.  The document properly and accurately lists the type of separation, character of service, separation authority, separation code, reentry code, narrative reason of separation; and dates of lost time.



4.  Based on her record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders her service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__jea___  __lvb___  __rdg___  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.




							James E. Anderholm
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070002901
SUFFIX

RECON

DATE BOARDED
20070918
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
19920127
DISCHARGE AUTHORITY
AR 635-200, Chap 3
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.