IN THE CASE OF:	  

		BOARD DATE:	        08 JANUARY 2009

		DOCKET NUMBER:  AR20080015650 


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 a general discharge.

2.  The applicant essentially states that she asks for forgiveness for the wrongdoings that she had done while she served in the Army.  She also states that when she entered the Army, she was a foster child with no parents and no self-discipline, and although that is not an excuse, it had an effect on the way she reacted to a well-disciplined environment that the Army required.  She further states that she wants to be given a chance to redeem herself to her country, and also wants to reenlist now that she is a more mature, self-disciplined woman.  She continued by essentially stating that she would greatly appreciate it if her discharge was upgraded to a general discharge under honorable conditions, and that she was too young at the time to understand and do what was required of her as a Soldier in the United States Army.

3.  The applicant provides an undated self-authored statement in support of this 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's military records show that she was born on 12 June 1971.  She enlisted in the Regular Army on 17 January 1990 in the rank and pay grade of private/E-2.  She completed basic and advanced individual training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  She was then reassigned to Fort Carson, Colorado.

3.  On 19 September 1990, a Bar to Reenlistment Certificate was imposed on the applicant after she accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for four offenses and received multiple counseling statements.  

4.  On 31 December 1990, the applicant went absent without leave (AWOL), and remained in this status until she returned to military control on 12 January 1991.

5.  On 4 September 1991, the applicant again went AWOL, and remained in this status until she returned to military control on 12 September 1991 and was placed in pre-trial confinement later that day.

6.  On 19 October 1991, the applicant was convicted by a special court-martial of larceny and AWOL.  She was sentenced to be reduced in rank and pay grade from private/E-2 to private/E-1, to be confined for 2 months and 16 days, and to be discharged from the service with a bad conduct discharge.  Already in pre-trial confinement since 12 September 1991, she remained in confinement until 
5 November 1991.  She was then placed on excess leave pending appellate review of her case.

7.  Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey Special Court-Martial Order Number 32, dated 18 September 1992, essentially shows that the applicant's sentence to a bad conduct discharge, confinement for 2 months and 16 days, and reduction to private/E-1 had been affirmed, and that her bad conduct discharge would be executed.

8.  On 24 November 1992, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial order.  Item 24 (Character of Service) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) essentially 
shows that she received a bad conduct discharge.  This document also shows, in pertinent part, that the narrative reason for her discharge was as a result of a court-martial. 

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

10.  Title 10, United States Code, section 1552, as amended does not permit any redress by this Board that 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.

11. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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 contends that her bad conduct discharge should be upgraded to a general discharge.

2.  The applicant's contention that she was too young at the time to understand and do what was required of her as a Soldier in the United States Army was considered, but not found to have merit.  The fact that she was a foster child was noted; however, records show that the applicant was over 19 years old at the time of her first period of AWOL, and was over 20 years old at the time of her court-martial.  Additionally, she had the maturity necessary to successfully complete basic and advanced individual training, and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed 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 this requirement.
4.  The applicant’s entire record of service was considered; however, the fact that the applicant was tried and convicted by a special court-martial for larceny and AWOL, and that she had previously been AWOL clearly shows that the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The evidence of record shows that the applicant was discharged pursuant to a duly reviewed and affirmed special court-martial order, and there is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.  

5.  After a thorough review of the available records, there was no cause for clemency and an insufficient basis upon which to base an upgrade of the applicant’s bad conduct discharge to an honorable or general discharge.  In view of the foregoing, there is no basis for upgrading the applicant's 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.




      _______ _ 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)                                         AR20080015650



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ABCMR Record of Proceedings (cont)                                         AR20080015650



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