IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012086 


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 (BCD) be upgraded to a discharge that will allow her to join a Reserve unit.  

2.  The applicant states, in effect, that her records are not in error or unjust and reflect exactly what her actions caused them to reflect.  She goes on to state that the events that led to her BCD back in 1992 are complex and lengthy; however, she would like the Board to consider her military history prior to these events and the fact that she worked as a sergeant for 6 months while knowing that she was going to be court-martialed and sent to jail.  She further states that her fellow Soldiers in her unit felt compelled to speak on her behalf regarding her dedication, attitude and loyalty portrayed while awaiting court-martial.  She continues by stating that she realizes the poor judgment in her actions and states that she has become a stronger person for it.  She has since become a paramedic and would like an opportunity to serve in a Reserve unit because she believes her post-service conduct and her military service prior to the events in question show that she has earned the opportunity to be considered for an upgrade of her discharge.

3.  The applicant provides no additional documents with her application. 

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 was born on 14 June 1958 and enlisted in the Regular Army in Denver, Colorado, with a moral waiver for writing bad checks, on 26 January 1982, for a period of 4 years and training as a wheel vehicle repairer.

3.  She completed her basic training at Fort Jackson, South Carolina and her advanced individual training at Aberdeen Proving Ground, Maryland before being transferred to Korea on 16 September 1982.  She completed her tour in Korea and was transferred to Fort Carson, Colorado on 31 October 1983.  She was advanced to the pay grade of E-4 on 1 July 1984.  The applicant was again transferred to Korea on 3 December 1984.  

4.  Although not explained in the available records, the applicant was reduced to the pay grade of E-3 for misconduct on 1 April 1985.  She was again advanced to the pay grade of E-4 on 1 September 1985.    

5.  She departed Korea on 22 January 1986 and was transferred to Fort Campbell, Kentucky.  She was promoted to the pay grade of E-5 on 7 March 1987.  On 24 November 1987, she received a relief for cause noncommissioned officer evaluation report (NCOER) covering the period from April to October 1987. 

6.  On 1 November 1988, she was transferred to Germany for assignment to a maintenance company in Darmstadt.

7.  On 11 August 1989, the applicant went absent without leave (AWOL) and remained absent in desertion until she surrendered to military authorities at Fort Knox, Kentucky on 2 January 1992.  It appears that she was returned to her unit in Germany for the disposition of charges against her. 

8.  On 4 June 1992, she was convicted pursuant to her pleas, by a General Court-Martial, of being AWOL from 11 August 1989 to on or about 3 January 1992 and six specifications of uttering bad checks in the amount of $9,440 during the period from 1 July to 11 August 1989, with intent to defraud.  She was 
sentenced to confinement for 2 years, reduction to the pay grade of E-1, forfeiture of all pay and allowances and a BCD.  However, the convening authority approved only so much of the sentence as provided for 18 months of confinement, reduction to the pay grade of E-1, forfeiture of all pay and allowances, and a BCD.

9.  The applicant was transferred to the Regional Correctional Facility at Fort Sill, Oklahoma on 23 July 1992 and on 23 February 1993, she was transferred to the Correctional Holding Detachment at Fort Leavenworth, Kansas in an administrative parole status.

10.  On 11 May 1994, orders were published by the United States Disciplinary Barracks at Fort Leavenworth which indicate that the applicant’s sentence and discharge had been affirmed and directed that the BCD be executed.  The applicant was on excess leave at the time.

11.  On 27 May 1994, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  She had served 8 years, 5 months, and 13 days of total active service and had approximately 1,815 days of lost time due to AWOL and confinement. 

12.  Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board 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.   
  
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 discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

3.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of her offenses and her extensive absence.  

4.  The applicant violated the trust placed in her as a Soldier and noncommissioned officer by uttering bad checks in excess of $9,000 and then by going AWOL for over 2 years before surrendering to military authorities and being held accountable for her actions.  Accordingly, her service does not rise to the level of a discharge under honorable conditions.   

5.  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.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080012086



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ABCMR Record of Proceedings (cont)                                         AR20080012086



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