IN THE CASE OF:	  

		BOARD DATE: 	        2 June 2009

		DOCKET NUMBER:  AR20090001753 


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 1992 dishonorable discharge be upgraded.

2.  The applicant states that she was using drugs and asked for treatment but was sent to jail instead.

3.  The applicant provides no additional evidence in support of her request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 28 May 1987.  She was 21 years old at the time and a high school graduate.  Following successful completion of training she was initially assigned to Fort Lewis, Washington.  By June 1989 she had been promoted to pay grade E-4.  In November 1989 she was reassigned to a postal unit in Italy and in May 1990 was reduced to pay grade E-3.  The basis for the reduction was not in records available to the Board.

3.  On 4 April 1991 the applicant was convicted by a general court-martial of absence without leave commencing on 15 February 1991 and ending on 6 March 1991 when she was apprehended, two counts of failing to go to her appointed placed of duty in January 1991, willfully disobeying a noncommissioned officer in January 1991, and use of cocaine on 12 December 1990.  Her sentence included a dishonorable discharge, forfeiture of all pay and allowances, reduction to pay grade E-1, and 42 months of confinement of which only 12 months were approved.

4.  She was confined at Fort Riley, Kansas.  In August 1991 the applicant underwent a mental status evaluation which found that her behavior was normal, that she was fully alert and oriented, and that her thought process was clear.  The evaluating official concluded the applicant was mentally responsible and had the mental capacity to understand and participate in any proceedings.

5.  On 3 February 1992, after being released from confinement, the applicant was placed on excess leave.

6.  On 20 July 1992, the U.S. Disciplinary Barracks, U.S. Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, published General Court Martial Order Number 109.  The sentence to a dishonorable discharge, 12 months of confinement, total forfeiture of pay, and reduction to pay grade E-1 which was adjudged on 4 April 1991, having been finally affirmed and Article 71(c) having been complied with, the sentence was ordered executed.

7.  On 31 July 1992, having been retained in the Army for 217 days beyond her scheduled separation date for the convenience of the government, the applicant was discharged from the Army with a dishonorable discharge in the rank and pay grade of private, E-1, pursuant to the sentence of a general court-martial.

8.  Army Regulation 635-200 (Personnel Separations), 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.

9.  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.

10.  Title 10, U.S. 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 applicant argues that she asked for treatment and was, in effect, denied that treatment.  However, she provides no evidence to substantiate that argument.  Records available to the Board indicate that during a mental status evaluation it was determined that her behavior was normal and that she was fully alert and oriented.

3.  Trial by court-martial was warranted by the gravity of the offenses charged.  The conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief.

4.  The applicant has provided no evidence which is sufficient to mitigate the offenses committed during her military service or warrant upgrading her character of service as a matter of equity.

5.  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 dishonorable discharge.

6.  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)                                         AR20090001753



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001753



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1