IN THE CASE OF:	

		BOARD DATE:	  17 September 2008

		DOCKET NUMBER:  AR20080010506 


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 an honorable discharge.

2.  The applicant states, in effect, that it has been 19 years since she was discharged and she wants a second chance.

3.  The applicant submitted no additional documentation in support of her request for an upgrade of her discharge.

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 enlisted in the US Army Reserve on 11 December 1978.  On 12 June 1979, she enlisted in the Regular Army.  She successfully completed basic and advanced individual training and was awarded military occupational specialty 91A, Medical Specialist [on 1 September 1984, the applicant was reclassified into MOS, 91B].  The applicant continued to serve through a reenlistment and an extension of her service until she was discharged.

3.  On 22 March 1985, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to her appointed place of duty on 5 March 1985.  The imposed punishment was extra duty for 7 days.  The applicant did not appeal the punishment imposed.

4.  On 25 October 1989, the applicant was tried and found guilty pursuant to her pleas by a special court-martial, of wrongfully using cocaine and for wrongfully using marijuana between 11 April and 11 May 1989.  She was sentenced to a bad conduct discharge, confinement for 45 days, a forfeiture of $100.00 pay per month for 3 months, and reduction to Private, E-1.  The sentence was approved and would be executed, except for the part of the sentence extending to the bad conduct discharge.  The execution of that part of the sentence adjudging confinement for 45 days was suspended for 45 days at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action.  The service of the sentence was deferred on 
25 October 1989.

5.  On 9 July 1990, Headquarters, US Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, published Special Court Martial Orders Number 49.  The sentence to a bad conduct discharge; forfeiture of $100.00 pay per month for three months; confinement for 45 days, suspended for 45 days, with provisions for automatic remission and reduction to Private, E-1; which was adjudged on 25 October 1989; having been finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

6.  On 25 July 1990, the applicant was discharged from the Army with a bad conduct discharge, in the rank and pay grade, Private, E-1, pursuant to the sentence of a special court-martial.  She completed 11 years, 7 months and 
15 days of active Federal service; with no time lost.

7.  There is no record that the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.


8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1(b) of the regulation provided, in pertinent part, that an enlisted person would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review was required to have been completed and the affirmed sentence ordered duly executed.

9.  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, 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.

10.  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 separation specifically allows such characterization.

11.  Title 10, United States Code, section 1552, as amended, does not permit any redress by this Board which would disturb the finality of a court-martial conviction.  The Board is empowered to address the punishment and/or the characterization of service resulting from a court-martial conviction.  The Board may elect to change the punishment and/or the characterization of service 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.  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 this requirement.

2.  The evidence of record shows the applicant received a special court-martial for wrongfully using cocaine and marijuana.  The evidence also shows that she had been promoted to the rank and pay grade of Specialist Five, E-5, for her patriotism, valor, fidelity, and professional excellence, and had been laterally promoted to the rank of Sergeant because of her demonstrated leadership skills and the trust and confidence she commanded.  By her indulging in illegal drugs such as cocaine and marihuana, she violated all the trust and confidence that had been placed on her.  In her role as a noncommissioned officer, she was expected to set the example for Soldiers serving in a lower pay grade.  

3.  The applicant was convicted of violations of the Uniform Code of Military Justice and as part of her sentence she was sentenced to a bad conduct discharge.  The evidence shows her conviction and discharge were effected in accordance with applicable law and regulation.

4.  The applicant’s sentence which was adjudged on 25 October 1989; having been finally affirmed and Article 71(c) having been complied with, the bad conduct discharge was ordered executed and the applicant was so discharged.

5.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge.

6.  The applicant provided no evidence to show that her discharge was unjust and she has also not provided evidence sufficient to mitigate the character of her discharge.

7.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080010506



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ABCMR Record of Proceedings (cont)                                         AR20080010506



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