IN THE CASE OF:	

		BOARD DATE:	20 August 2009    

		DOCKET NUMBER:  AR20090007132 


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 an upgrade of her discharge is justified by the facts that she did not receive counseling for post-traumatic stress disorder (PTSD), she was poorly represented by her appointed military attorney, she incriminated herself out of fear, she was not offered drug treatment, and she signed documents that she would not have signed if she had reasonable legal representation.  The applicant concludes that it is an injustice for her to continue to suffer the consequences of a bad conduct discharge.

3.  The applicant provides three certificates of duty performance, a DD Form 214 (Certificate of Release or Discharge from Active Duty), a memorandum from her defense attorney, a DA Form 3595-R (Record Fire Scorecard), a DA Form 705 (Army Physical Fitness Test Scorecard), and her resume as documentary evidence 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 record shows she was an enlisted member of the U.S. Army Reserve during the period 23 September 1987 through 27 December 1989.  Upon completion of advanced individual training she was awarded the military occupational specialty (MOS) 31U (Signal Support System Specialist).  She enlisted in the Regular Army on 28 December 1994.  The highest rank she attained while serving on active duty was specialist/pay grade E-4.  However, at the time of her separation she held the rank of private/pay grade E-1.

3.  The applicant's record shows that she served in Southwest Asia during the period 12 September 1990 through 5 April 1991.

4.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows that she was awarded or authorized the Southwest Asia Service Medal with two bronze service stars, the Army Achievement Medal, the National Defense Service Medal, the Army Service Ribbon, the Kuwait Liberation Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

5.  The applicant provides a DA Form 3595-R, dated 14 June 1991, which shows she qualified as an expert marksman on 13 June 1991 by hitting 37 out of 40 targets.

6.  The applicant provides a DA Form 705 which shows she scored 277 out of a possible 300 points on the Army Physical Fitness Test on 20 June 1991.

7.  The applicant's record contains a memorandum addressed to the Commander, Headquarters and Headquarters Company, 9th Battalion, 101st Aviation Regiment, dated 16 June 1992, subject:  Drug Urine Positives/
Required Action.  This memorandum shows a representative of the Chief of the Identification and Training Branch informed the applicant's commander that a urine sample collected from her on 20 May 1992 had tested positive for marijuana.  The commander was directed to refer the applicant to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for a screening interview and evaluation.  A Rehabilitation Team Meeting (RTM) was to take place among the counselor, the Soldier, and the commander immediately following the screening interview.  The Soldier would be scheduled for treatment services as determined by the treatment plan after the RTM.
8.  The applicant provides three certificates of duty performance rendered by two sergeants/pay grade E-5 and a specialist who observed her duty performance during the period between December 1989 and November 1992.  Each of these individuals made positive comments about the applicant's duty performance, knowledge of her MOS, personal appearance, attitude, and value to the unit's mission.

9.  U.S. Army Trial Defense Service, Fort Campbell Field Office, Fort Campbell, Kentucky, memorandum, dated 1 January 1993, subject:  R.C.M. [Rules for Court-Martial] 1105 - [applicant], shows the applicant's defense counsel appealed to the Commanding General of the 101st Airborne Division (Air Assault) to disapprove the bad conduct discharge adjudged in the case of United States versus [applicant].  The defense counsel asked the Commanding General to take notice of the applicant's personal appeal in addition to the following information when making his decision:

	a.  Characterization of the crime.

		(1)  In May 1992, the applicant smoked marijuana.

		(2)  In June 1992, the applicant lied about smoking marijuana and that lie snowballed into an attempt to corroborate her story.

		(3)  In August 1992, the applicant went absent without leave.

		(4)  On 23 October 1992, the applicant voluntarily returned herself to military control.

		(5)  On 6 November 1992, the applicant pled guilty at her court-martial.

	b.  Characterization of the applicant's duty performance.

		(1)  A captain/pay grade O-3 who was the applicant's company commander for a period of 16 months testified at the court-martial regarding her duty performance.  He testified that the applicant was a hard worker and on a scale of 1 to 10, he rated her as an 8.

		(2)  A sergeant first class/pay grade E-7 who was the applicant's supervisor for a period of 8 months also testified at the court-martial.  He testified that the applicant was one of his better Soldiers.

	c.  Characterization of duty performance while in confinement.

		(1)  The applicant was serving her confinement period at Fort Sill, Oklahoma, where she resided in the Honor Dorm.

		(2)  While in confinement, the applicant completed three self-improvement courses.

		(3)  The applicant had impressed her supervisor and other prison officials and they had written statements on her behalf.  [These statements were not provided for review by the ABCMR].

	d.  Conclusion.

		(1)  During her confinement period, the applicant endeavored to impress the commanding general.  She had displayed a great deal of motivation and dedication.

		(2)  The applicant's duty performance while on active duty was impressive and noteworthy.

		(3)  The applicant was an E-4 and rehabilitation of lower enlisted personnel was the spirit of the drug and alcohol program.  The applicant appeared to be a qualified candidate for successful rehabilitation.

10.  Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, Special Court-Martial Order Number 5, dated 14 January 1993, shows the applicant was arraigned at Fort Campbell, Kentucky, on numerous offenses at a special court-martial convened by the command.  The offenses for which the applicant was charged and subsequently found guilty of include:  wrongful use of marijuana, two specifications of rendering a false official statement, false swearing, and two specifications of soliciting another to commit an offense.  The sentence was adjudged on 6 November 1992 and the punishment was as follows:  reduction to private/E-1, confinement for 90 days, and a bad conduct discharge.  The sentence was approved and, except for the bad conduct discharge, was directed to occur immediately.

11.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Court-Martial Order Number 4, dated 11 January 1994, shows the applicant's aforementioned sentence had been finally affirmed.  The appellate review according to Article 71(c) had been complied with and the bad conduct discharge was directed to be executed.  The order also shows that the portion of the sentence pertaining to confinement had been served.

12.  The record shows that on 3 March 1994, the applicant was discharged accordingly.  The DD Form 214 issued to her at the time shows the applicant completed a total of 3 years, 10 months, and 5 days of creditable active military service during that period of enlistment.  This form also shows the applicant had time lost during the periods 1 September 1992 through 22 October 1992 and 6 November 1992 through 14 January 1993.  Her service was characterized as "bad conduct" and the narrative reason for her separation was "court-martial, other."

13.  The applicant's record is void of any evidence and she has failed to provide evidence that she participated in or was exposed to direct combat or any other traumatic event while serving on active duty.

14.  The applicant's record contains a DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States), dated 10 November 2000, which shows the applicant submitted an application to the Army Discharge Review Board (ADRB) requesting that her discharge be upgraded to an honorable discharge.  When listing the reasons she felt she was entitled to an upgrade, the applicant made no mention of her current contentions that she did not receive counseling for PTSD, she was poorly represented by her appointed military attorney, she incriminated herself out of fear, she was not offered drug treatment, and she signed documents that she would not have signed if she had reasonable legal representation.

15.  The applicant's record contains Department of the Army Review Boards Agency (ARBA) Support Division, St. Louis, Missouri, letter, dated 24 November 2000, which shows a representative of the ARBA Support Division informed the applicant that her application had been received.  The representative also informed the applicant that no further action could be taken at that time due to the fact that the ADRB had previously heard her case.  The representative also informed the applicant that she could submit a new appeal if she desired to appear before the ADRB in person or had "new substantial and relevant" evidence to present to the ADRB.

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, 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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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 discharge should be upgraded.

2.  The applicant's record is void of any evidence and she has failed to provide evidence that she participated in or was exposed to direct combat or any other traumatic event while serving on active duty.  Therefore, her contention that she was not offered counseling for PTSD is without merit.

3.  The evidence shows the applicant was command-referred to the ADAPCP as a result of testing positive on a urinalysis.  Therefore, her contention that she was not offered drug treatment is without merit.

4.  The evidence shows the applicant's defense counsel submitted an appeal on her behalf.  The evidence also shows the applicant made no mention of her dissatisfaction with her legal representation in the application for discharge upgrade she submitted to the ADRB in November 2000.  Therefore, her contention that she was very poorly represented by her appointed defense counsel is without merit.

5.  The applicant's record reveals a pattern of indiscipline culminating in her trial by special court-martial which was warranted by the gravity of the offenses charged.  Her 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.

6.  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.
7.  After review of the applicant’s available record of service, it was not considered sufficiently meritorious to warrant clemency in this case.  Given the seriousness of the offenses for which she was convicted and her lost time, it is also clear that her service was not satisfactory, thus did not meet the criterion for discharge under either general or honorable conditions.  Therefore, there is no basis for a grant of clemency in the form of an upgraded 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.



      ___________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)                                         AR20090007132



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ABCMR Record of Proceedings (cont)                                         AR20090007132



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