IN THE CASE OF:	  

		BOARD DATE:	  	  5 May 2009

		DOCKET NUMBER:  AR20090000935 


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, upgrade of her bad conduct discharge.

2.  The applicant states, in effect, her bad conduct discharge was not warranted and should be corrected because she was accused of incidents that did not occur.

	a.  The applicant states she was not aware of the status of her discharge and she was okay with an honorable discharge with early release and no benefits; however, she disagrees with a bad conduct discharge.  She adds that she did not exhibit bad conduct and was falsely accused.  The applicant also states that it has been 20 years since her discharge and she has moved on.

	b.  In her self-authored statement, the applicant describes a recent experience she had at the Florida Occupational Therapy Association Conference when the keynote speaker, Lieutenant Colonel R____ J. A____, Medical Service Corps, informed her that the Army is in need of occupational therapists.  She also states that she took her physical examination on 15 November 2008, but requires a waiver because of her character of service.  The applicant adds that she has the necessary skills, wants to serve her country, and requests upgrade of her discharge.

	c.  The applicant states that she was an outstanding Soldier while in the Army, she loves and supports her country, and a review of her records will speak to her high quality of service.

	d.  The applicant states that she was falsely accused of several things in 1987/1988, received a court-martial, was discharged from the Army, and told that she was responsible for the shipment of her household goods and relocation to the mainland.  The applicant states she was divorced and a single parent, she was able to pay for shipment of her household goods, but sold her car because she could not afford to ship it back to the mainland.

	e.  The applicant states she purchased an airline ticket and returned to Rockville, Maryland.  She also states that she started working full-time and attending college part-time a couple of weeks later.  The applicant adds that a few months later, the U.S. Army contacted her mother and told her that the applicant had not reported for duty and had not been discharged.  The applicant states that she immediately contacted the Pentagon and was informed that she was in an absent without leave (AWOL) status.  The applicant states that she reported to the Pentagon, was arrested, transported back to Hawaii, and detained at Pearl Harbor for several months while fighting for her rights.  After several months, she was transported to Florida and discharged in St. Petersburg, Florida.

	f.  The applicant states that she was okay with a general discharge, which she thought she received; however, the discharge document that she recently received shows she was issued a bad conduct discharge.

	g.  The applicant’s self-authored statement highlights where she relocated after her discharge, her post-service schooling with certification as a Medical Assistant and degrees in Occupational Therapy, employment history from 1989 through the present, her church activities and extensive community service, her product developments for those in need, and a long list of her honors and memberships.  The applicant provides a summary of her military awards, achievements, formal training, and promotions, along with the training she successfully completed while serving in Hawaii, and while being held in detention at Pearl Harbor, Hawaii.  The applicant also provides copies of documents that substantiate the training, service, certifications, and awards she mentions in her self-authored statement.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 24 November 2008; two DD Forms 214 (Certificate of Release or Discharge from Active Duty) with effective dates of 30 July 1981 and 30 November 1988; and a five-page self-authored statement accompanied by 66 enclosures documenting her training, awards, achievements, and certifications earned during both her military service and after her discharge from the U.S. Army.

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 personnel records show she enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 16 September 1980.  The applicant was ordered to active duty for training (ADT) on 12 June 1981 and upon completion of advanced individual training (AIT) she was awarded military occupational specialty (MOS) 76J (Medical Supply Specialist).  The applicant was honorably released from ADT on 30 July 1981 and transferred to her USAR unit.  At the time she had completed 1 month and 19 days of net active service this period, 1 month and 25 days of total prior active service, and 7 months and 1 day of total prior inactive service.

3.  The applicant’s military personnel records show she enlisted in the USAR Delayed Entry Program on 20 August 1981.  She then enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 28 December 1981.  Upon completion of AIT, she was awarded MOS 7lL (Administrative Specialist) as her primary MOS.  On 14 August 1984, the applicant extended her 3-year enlistment in the RA for a period of 1 month and on 2 January 1985 the applicant reenlisted in the RA for a period of 4 years.  The highest grade the applicant attained during her military service was sergeant/pay grade E-5.

4.  The applicant's military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 5 (Oversea Service) shows that she served overseas in the Far East Pacific in Hawaii from 14 July 1985 through 30 December 1989.

5.  The applicant’s military personnel records contain a copy of Headquarters, 25th Infantry Division (Light), Schofield Barracks, Hawaii, Special Court-Martial Order Number 6, dated 8 April 1988, which documents the following charges, specifications, pleas, findings, sentence, and action.

	a.  Charge I, Article 91, Uniform Code of Military Justice (UCMJ), Specification 1, that the applicant was disrespectful to Staff Sergeant J____ T____ on 29 April 1987.  The applicant entered a plea of not guilty and was found guilty.

	b.  Charge I, Article 91, UCMJ, Specification 2, that the applicant was disrespectful to Staff Sergeant J____ T____ on 7 September 1987.  The applicant entered a plea of not guilty and was found guilty.

	c.  Charge I, Article 91, UCMJ, Specification 3, that the applicant wrongfully used provoking words toward Staff Sergeant J____ T____ on 15 October 1987.  The applicant entered a plea of not guilty and was found guilty of Article 134.

	d.  Charge II, Article 128, UCMJ, Specification, assault consummated by a battery upon V____ M. M____ on 22 November 1987.  The applicant entered a plea of not guilty and was found guilty.

	e.  Charge III, Article 134, UCMJ, Specification, making harassing telephone calls to Staff Sergeant J____ T____ on 27 April 1987.  The applicant entered a plea of not guilty and was found guilty.

	f.  On 28 January 1988, the sentence was adjudged.  The applicant’s sentence was to be reduced to the grade of private (E-1) and to be discharged from the U.S. Army with a bad conduct discharge.

	g.  On 8 April 1988, the convening authority approved the sentence, except for that portion extending to a bad conduct discharge, and ordered the sentence executed.

6.  The applicant’s military records contain a DA Form 4187 (Personnel Action), dated 2 February 1988, that shows the applicant’s duty status was changed from present for duty (PDY) to AWOL effective 29 January 1988.

7.  The applicant’s military personnel records contain a DA Form 4187, dated 29 February 1988, that shows the applicant’s duty status was changed from AWOL to dropped from the rolls (DFR) effective 29 February 1988.

8.  The applicant’s military personnel records contain a DA Form 4187, dated 25 October 1988, that shows the applicant’s duty status was changed from AWOL to PDY effective 16 May 1988.  This document also shows that the applicant surrendered to military authorities at Schofield Barracks, Hawaii.

9.  The applicant’s military personnel records contain a copy of an Appellate Defense Counsel Representation form, dated 28 January 1988, that shows, in pertinent part, the applicant indicated with her signature that she desired to be represented before the Court of Military Review by Appellate Defense Counsel appointed by The Judge Advocate General of the Army.

10.  The applicant’s military personnel records contain a copy of United States Army Court of Military Review (ACMR), Before [judges names] Appellate Military Judges, United States, Appellee versus [applicant], ACMR 88____, Decision, dated 31 May 1988.  This document shows on consideration of the entire record, including consideration of the issue personally specified by the appellant, the ACMR held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, those findings of guilty and the sentence were affirmed.

11.  The applicant’s military personnel records contain a copy of Headquarters, 25th Infantry Division (Light), Schofield Barracks, Hawaii, Special Court-Martial Order Number 21, dated 28 September 1988.  This document shows, in pertinent part, the applicant's sentence was affirmed.  This order also shows that the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed.

12.  The applicant’s records contain a DA Form 2496 (Disposition Form), dated 3 October 1988, subject:  Statement of Acknowledgement of Rights to Individual on Application for Excess Leave.  This document shows, in pertinent part, that the applicant acknowledged she had been directed to take excess leave without pay and allowances because she was convicted by special court-martial on 28 January 1988 and the convening authority approved a sentence which included a punitive discharge.  The applicant’s records also contain a DA Form 4187, dated 3 October 1988, subject:  Leave - Excess/Advance/
Outside CONUS, that shows the applicant requested excess leave pending appellate review of her bad conduct discharge.  Her records also contain a DA Form 2496, dated 3 October 1988, that shows the Chief, Personnel Actions Section, U.S. Army Armor Center (USAARMC) and Fort Knox, Fort Knox, Kentucky, approved the applicant’s request for excess leave.

13.  The applicant’s military personnel records contain a copy of Headquarters, USAARMC and Fort Knox, Fort Knox, Kentucky, Orders 217-24, dated 9 November 1988, that shows the applicant was assigned to the Special Processing Company, U.S. Army Personnel Control Facility, USAARMC and Fort Knox, Fort Knox, Kentucky, and reassigned to the U.S. Army Transition Point, Fort Knox, Kentucky, for transition processing with a reporting date of 30 November 1988.
14.  The applicant’s military personnel records contain a DD Form 214 issued to her on the date of her separation confirming she was discharged with a bad conduct discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3 (Character of Service/Description of Separation), section IV (Dishonorable and Bad Conduct  Discharge), as a result of court-martial (other).  At the time of her discharge the applicant had completed 6 years, 7 months, and 16 days of net active service during the period of service under review with 108 days of time lost from 29 January 1988 through 15 May 1988.

15.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. 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.

17.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers. Chapter 3, section IV, paragraph 3-11, provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the sentence affirmed before it can be duly executed.

18.  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.

19.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her bad conduct discharge should be upgraded because she was falsely accused of incidents that did not occur, she did not exhibit bad conduct, her bad conduct discharge was not warranted, and she was not aware of the status of her bad conduct discharge.

2.  The evidence of record shows that the applicant pled not guilty to all charges and specifications at a special court-martial and that she was convicted of all charges and specifications as modified.  The evidence of record also shows that on the day immediately following the day that sentence was adjudged, the applicant went AWOL, was DFR of her unit, and remained AWOL for 108 days.  The evidence of record further shows that after her return to military control, the applicant requested excess leave pending appellate review of her Bad Conduct Discharge.  Thus, the evidence of record refutes the applicant’s contentions that she was falsely accused, she did not exhibit bad conduct, and that her bad conduct discharge was not warranted because she was accused of incidents that did not occur.  The evidence of record also clearly refutes the applicant’s contention that she was not aware of the status of her discharge.  Moreover, the applicant's contention (i.e., of being falsely accused of incidents that did not occur) relates to evidentiary/mitigating matters that could have been raised in the court-martial appellate process and furnish no basis for recharacterization of her discharge.

3.  The evidence of record confirms the applicant’s trial by court-martial was warranted by the gravity of the offenses for which she was charged.  In addition, conviction and discharge were effected in accordance with applicable law and regulations and the applicant’s rights were protected throughout the court-martial process.

4.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

5.  After a thorough and comprehensive review of the applicant’s military service record, it is concluded that based on the seriousness of the offenses for which she was convicted, clemency would not be appropriate in this case.

6.  The applicant's post-service conduct, personal achievements, and service to the community since her discharge were carefully considered.  The applicant’s good post-service conduct and achievements are commendable, but not so meritorious as to warrant an upgrade of her discharge.

7.  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

____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)                                         AR20090000935



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ABCMR Record of Proceedings (cont)                                         AR20090000935



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