IN THE CASE OF:	  

	BOARD DATE:	  5 June 2008

	DOCKET NUMBER:  AR20070014420 


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 bad conduct discharge be upgraded to honorable.

2.  The applicant defers to counsel for her statement. 

3.  The applicant provides no supporting documentation.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that that the applicant's bad conduct discharge be upgraded to honorable.

2.  Counsel states, in effect, that since the applicant did not receive notification of her bad conduct discharge until November 2004, the statute of limitations had not expired at the time of her request.  The applicant pled guilty, at a General Court-martial, to three wrongful uses of cocaine and was sentenced to reduction to pay grade E-1, 8 months confinement, and a bad conduct discharge.  The applicant's addiction to cocaine at the time of her court-martial is not disputed.  Her life quickly spiraled out of control and ruined her military career.  The 8-month confinement was cruel but necessary.   She hit rock bottom and realized that she had to turn her life around despite her Federal drug conviction.  The applicant did turn her life around.  She moved to California and studied nursing.  Her subsequent certificates, letters of support, and drug free test results overwhelmingly demonstrate that the bad conduct discharge served its purpose and is no longer justified.  The applicant's pre-court military record shows no disciplinary actions, excellent performance evaluations, and that she was on the fast track for promotion to staff sergeant, pay grade E-6.  Since then, she has been a shining example of life after the military.  

3.  Counsel provides a photograph of the applicant, letter of employment status, two letters of support, current job description and performance evaluation, licensure and certification as a registered nurse and public health nurse, San Diego State University Bachelor of Science in Applied Arts and Sciences Nursing, letters and transcripts of admission into California State University Masters Degree program for nursing, documents for Honor Society of Nursing, Certificate of successful completion of outpatient treatment and completion of community service and voluntary work, and four negative drug testing reports.

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.  On 19 September 1996, the applicant enlisted in the Regular Army  She completed her initial training and was awarded military occupational specialty (MOS) 63H (Track Vehicle Repairer).

3.  On 14 May 1997, the applicant was assigned for duty as a heavy wheel vehicle mechanic with the Forward Support Battalion in the Republic of Korea.  She returned to the United States in May 1998 for duty with the 115th Forward Support Battalion at Fort Hood, Texas.

4.  On 31 May 1999, the applicant was promoted to sergeant, pay grade E-5 and was subsequently reassigned for duty as a shop foreman with the 603rd Aviation Support Battalion, Fort Stewart, Georgia.



5.  On 15 October 1999, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for willful and unlawful alteration of a public record.  The punishment included reduction to pay grade E-4 (suspended), forfeiture of $725.00 pay per month for 2 months, and 
30 days extra duty (15 days suspended).  The applicant did not appeal the punishment.

6.  On 14 August 2001, charges were preferred under the Uniform Code of Military Justice (UCMJ).  Charge I was for violation of Article 80 (one specification) for attempting to steal a civilian police patrol car.  Charge II was for violation of Article 109 (two specifications) for willfully and wrongfully damaging a patrol car and for willfully and wrongfully damaging an apartment door.  Charge III was for violation of Article 112a (three specifications) for wrongful use of cocaine.  Charge IV was for violation of Article 128 (one specification) for assault on a civilian police officer in the execution of his law enforcement duties.

7.  On 17 December 2001, the applicant through her counsel entered into an agreement (stipulation of fact) with the trial counsel with regard to Charge III and its specifications.  

8.  On 19 December 2001, before a Military Judge at a General Court-Martial, the applicant pled not guilty to Charges I, II, and IV and all specifications; and pled guilty to Charge III and all specifications.  The applicant had agreed to a stipulation of fact with the understanding that the government would not go forward with the remaining charges.  

9.  The military judge accepted the applicant's plea and found her not guilty of Charge I and its specification; Charge II and its specifications; and of Charge IV and its specification.  The Military Judge found her guilty of Charge III and its specifications.  The military Judge sentenced her to a reduction to pay grade E-1, confinement for 8 months, and a bad conduct discharge.

10.  On 14 March 2002, the Staff Judge Advocate, in a written review for the convening authority, summarized the evidence and trial discussion.  The Staff Judge Advocate recommended approval of the sentence. 

11.  On 13 June 2002, the convening authority approved the sentence except for that part extending to a bad conduct discharge. 





12.  On 24 March 2003, the United States Army Court of Criminal Appeals reviewed the entire record, including consideration of the applicant's contention that her sentence was inappropriately severe and that she was treated unfairly, and held that the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, it affirmed the finding of guilty and the sentence as approved.

13.  General Court-Martial Order Number 321, United States Army Field Artillery Center and Fort Sill, Oklahoma, dated 11 September 2003, provided that the sentence to reduction to pay grade E-1, confinement for 8 months, and a bad conduct discharge, adjudged on 19 December 2001, had been affirmed.  Article 71(c), UCMJ, having been complied with, the bad conduct discharge was to be executed.

14.  The applicant's DD Form 214 shows that she was discharged on 27 August 2004 under the provisions of Army Regulation 635-200, Chapter 3, section IV and received a bad conduct discharge.  

DISCUSSION AND CONCLUSIONS:

1.  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 final discharge appropriately characterized the misconduct for which the applicant was convicted.

2.  The applicant’s reported good post-service conduct is noted.  However, it does not sufficiently mitigate her repeated acts of indiscipline during her military service.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the above, the applicant's request should be denied.  








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)                                         AR20070014420



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ABCMR Record of Proceedings (cont)                                         AR20070014420



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