IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080012033 


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 that her bad conduct discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states, in effect, that her discharge should be upgraded due to the many years she served with no problems.  She does not believe she was unfairly treated.  She just wants the chance to rejoin the Army.  She has paid for her mistake.

3.  The applicant provides no additional evidence.

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 U. S. Army Reserve on 26 June 1992.  She completed active duty for training and was awarded military occupational specialty 71L (Administrative Specialist).  

3.  The applicant enlisted in the Regular Army on 7 October 1993.  She was honorably released from active duty upon the completion of her required service on 6 October 1996 and was transferred to the U. S. Army Reserve.  Her DD Form 214 for the period ending 6 October 1996 shows she received an honorable characterization of service.

4.  The applicant was ordered to active duty on 8 December 1996 in support of Operation Joint Endeavor/Guard.  She was released from active duty on
11 August 1997.  Her DD Form 214 for this period shows she received an honorable characterization of service.

5.  The applicant enlisted in the Regular Army on 28 June 1999 in the rank and grade of Specialist, E-4. 

6.  On 5 September 2001, the applicant was convicted by a special court-martial, in accordance with her pleas, of wrongfully appropriating about $70.00 (in the form of a check) from an individual; of wrongfully appropriating about $1,500.00 (in the form of a check) from another individual; of two specifications of forging a name on a check; and of making a false statement under oath.  She was sentenced to be reduced to Private, E-1, to forfeit $695.20 pay per month for three months, and to perform hard labor without confinement for 60 days. 

7.  On 1 March 2002, the applicant was convicted by a special court-martial, in accordance with her pleas, of wrongfully appropriating about $500.00 and of committing forgery.  She was sentenced to confinement for four months and to be discharged with a bad conduct discharge.

8.  Headquarters, U. S. Army Field Artillery Center and Fort Sill Special Court-Martial Order Number 75, dated 15 May 2003, noted that the applicant’s sentence by court-martial had been affirmed.

9.  On 25 February 2004, the applicant was discharged with a bad conduct discharge pursuant to her sentence by court-martial.  She had completed            4 years, 4 months, and 17 days of creditable active service and had 101 days of lost time (confinement) during the period under review.

10.  On 10 August 2005, the Army Discharge Review Board denied the applicant’s request for a discharge upgrade.

11.  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 ABCMR 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.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.  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’s prior service was appropriately recognized when her previous DD Forms 214 were prepared to show she was separated with an honorable characterization of service.

2.  The misconduct for which the applicant received her bad conduct discharge was not an isolated incident.  Six months earlier she had been convicted by a court-martial of offenses similar to the ones that resulted in her bad conduct discharge.  Considering the applicant’s multiple offenses, the characterization of her discharge for her service ending 25 February 2004 as a bad conduct discharge was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  _____XX___  ___XX_____  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.



      _______XXXX_______________
               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)                                         AR20080012033



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ABCMR Record of Proceedings (cont)                                         AR20080012033



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