IN THE CASE OF:	   

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080001710 


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 an upgrade of her discharge.

2.  The applicant states that her embezzlement court-martial was influenced by a gambling addiction.  Specifically, the applicant presents the following arguments:

	a.  She comes from a very impoverished background in the Philippines and that she is the only one providing financial help to her family.  At the time, her mother needed colon surgery but did not have the money.  The applicant tried to borrow money from her co-workers to send to her mother, but the co-workers would not help her.  When her battalion deployed to Kuwait and she was left in charge of the in/outprocessing section of her finance rear detachment, she was under a lot of stress to keep the finance operations running smoothly and went into depression.  She started frequenting local casinos to relieve the stress and was ultimately hooked and addicted to gambling.  She further states that had her leaders tried to help her before she went into depression, she would not have been addicted to gambling.

	b.  She was diagnosed with thyroid cancer while in confinement (5 months after the court-martial), but the symptoms initially appeared in 1997.  The Veterans Administration (VA) does not qualify her medical condition as service connected because her surgery occurred after her court-martial.  However, she needs medical care and is required to take medications for the rest of her life.  With her current character of service, she is not qualified for VA benefits.  

3.  The applicant provides the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 January 2007.  

	b.  DA Forms 2166-7 [Noncommissioned Officer (NCO) Evaluation Report] for the periods 200002 to 200101, 200102 to 200105, 200106 to 200203, 200204 to 200209, 200210 to 200303, and 200304 to 200403.  

	c.  Memorandum, dated 25 February 2003, Appointment of a "Tiger Team," Headquarters, 7th Infantry Division and Fort Carson, Fort Carson, Colorado. 

	d.  General Court-Martial Order Number 268, dated 3 November 2006, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma. 
	
	e.  Nine Certificates of Training, three Certificates of Promotion, Two Honorable Discharge Certificates, Certificate of Reenlistment, Certificate of Affiliation, and Certificate of Commendation.

	f.  DA Form 705 (Army Physical Fitness Test Scorecard), dated on miscellaneous dates.  

	g.  DA Form 5790-R (Record Firing Scorecard-Scaled Target Alternate Course), dated 28 September 2001.  

	h.  Three sets of permanent orders awarding her three awards of the Good Conduct Medal, permanent order awarding her the Driver Badge (Wheeled Vehicle), and Military Occupational Specialty (MOS) orders. 

	i.  Two Diplomas, conferring upon her the degrees of Bachelor of Science in Commerce, Western Philippine College, and Bachelor of Arts, Colorado State University, Pueblo, Colorado.  

	j.  Three Certificates awarding her two awards of the Army Achievement Medal and one award of the Army Commendation Medal.   

	k.  Two character reference letters (one from a General Officer).

	l.  Two computer printouts regarding the effects of depression on adults with cancer.  

	m.  Department of Veterans Affairs Rating Decision letter, dated 31 July 2007.  

	n.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 8 January 2007.  

	o.  Surgical Pathology Report, dated 23 December 2004, Naval Medical Center, San Diego, California.    

	p.  Standard Form 600 (Chronological Record of Medical Care), dated 11 February 2005.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that she enlisted in the Regular Army for a period of 3 years on 10 November 1994.  She completed basic combat and advanced individual training and was awarded MOS 44C (Financial Management Technician).  She subsequently executed three reenlistments in the Regular Army.  She was promoted to sergeant (SGT) on 1 February 2000 and to staff sergeant (SSG) on 1 November 2001.  

2.  The applicant's records further show that she was awarded the National Defense Service Medal; the Army Commendation Medal; the Army Achievement Medal (1st Oak Leaf Cluster); the Good Conduct Medal (3rd Award); the Global War on Terrorism Service Medal; the Noncommissioned Officer Professional Development Ribbon with Numeral 2; the Army Service Ribbon; the Expert Marksmanship Qualification Badge, with Rifle Bar (M-16); and the Driver and Mechanic Badge (Wheeled Vehicle).  Her records do not show any significant acts of valor during her military service.

3.  In June 2001, she was assigned to Headquarters and Headquarters Detachment, 4th Finance Battalion, Fort Carson, Colorado, as the Noncommissioned Officer in Charge (NCOIC), Internal Control Section and Military Pay Senior NCO. 

4.  On 22 June 2004, the applicant pled not guilty at a General Court-Martial to the following charges and specifications:

	a.  Charge I – one specification of being derelict in the performance of her duties in that she willfully failed to follow proper finance procedures, between on or about 15 April 2003 and 21 May 2003. 
	b.  Charge II – two specifications of stealing monies, military property of a value of approximately $7,161.58 and $2,621.48, between on or about 15 April 2003 and 21 May 2003.

	c.  Charge III – three specifications of devising a scheme to obtain money by means of false pretenses (larceny and wire fraud), on or about 15 April 2003 and between on or about 15 April 2003 and 20 May 2003. 

5.  The Court found the applicant guilty of all charges and specifications and sentenced her to a reduction to the grade of private/E-1, a forfeiture of all pay and allowances, to pay a fine to the U.S. Government of $9,700.00 (to serve an additional 9 months of confinement if the fine is not paid), to be confined for 27 months, and to be discharged from the Army with a Dishonorable Discharge.  The sentence was adjudged on 22 June 2004.

6.  The applicant was transferred to the Naval Consolidated Brig, Miramar, San Diego, California, for service of her sentence to confinement.

7.  On 4 November 2004, the convening authority approved the sentence, and except for that part of the sentence extending to a Dishonorable Discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

8.  On 23 December 2004, while in confinement, the applicant was diagnosed with thyroid cancer. 

9.  On 10 March 2005, the Army Clemency and Parole Board upgraded the applicant's Dishonorable Discharge to a Bad Conduct Discharge, granted her 11 days of clemency in lieu of work abatement, and ordered her $9,700.00 fine remitted.  Additionally, the Army Clemency and Parole Board granted the applicant parole effective 6 May 2005, conditioned upon good behavior and participation in and successful completion of a Mental Health Therapy Program focusing on her gambling addiction.   

10.  On 3 November 2006, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

11.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, General Court-Martial Order Number 268, dated 3 November 2006, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the Bad Conduct Discharge executed. 

12.  The applicant was discharged from the Army on 8 January 2007.  Her 
DD Form 214 shows she was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations), as a result of court-martial.  This form further shows the applicant's character of service as bad conduct and that she completed 9 years, 10 months, and 29 days of creditable military service.  She also had 2 years and 3 months of lost time due to being in confinement. 

13.  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.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, and Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  Chapter 4 of the regulation states, in pertinent part, that the case of a Soldier charged with an offense under the Uniform Code of Military Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless the investigation ends without charges, the officer exercising proper court-martial jurisdiction dismisses the charges, and/or the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded.

2.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows her mother's illness led to her alleged depression, which in turn led to her gambling habit.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that she addressed her financial difficulties with her chain of command or any of the support channels available at her installation.

3.  The applicant was a senior SSG with nearly 10 years of military service and who was in a position of trust.  Soldiers with the applicant's years of service and position are expected not to abuse their position of trust and/or fail to set a good example.  The applicant's outstanding awards, achievements, and evaluations, only confirm that she knew what she was doing when she committed her offense, and in effect, betrayed her Soldiers and the Army.

4.  With respect to the applicant's diagnosis with thyroid cancer, while the evidence submitted by the applicant confirms that she was diagnosed with thyroid cancer during her confinement, Army Regulations prohibit Soldiers who are convicted by a general court-martial and sentenced to a punitive discharge from being considered for disability processing.  A Soldier may not be referred for, or continue disability processing if under sentence of dismissal or punitive discharge. 

5.  The applicant's trial by a general 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.

6.  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.

7.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  After a review of the applicant’s entire record of service, it is clear that her service did not meet the criteria for a general discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to general discharge.

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)                                         AR20080003771



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20080001710



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508