IN THE CASE OF:	

		BOARD DATE:	6 October 2009   

		DOCKET NUMBER:  AR20090007513 


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 (BCD).

2.  The applicant states, in effect, that she enlisted in the Army as a career instead of just another job.  However, it ended when her husband at the time robbed her mother's mailbox and found out the location of her basic training.  She states that her husband came to see her while at basic training, ordering her battalion commander to let him see her.  She states that while she completed her basic training her husband stayed at a hotel off post at her expense and began stealing from the Post Exchange.  He also became violent and started beating her but when the military police came he would lie about beating on her.  She claims that while in Advanced Individual Training her husband was arrested and she was told by her drill sergeant to go bail him out and send him home.  However, after bailing him out he refused to leave and informed her that he would mess up her career.  She also states that her husband lied on her and testified against her for non-payment of spousal support, which resulted in her being court-martialed.  She states that she is an accountant and has been for the past 16 years, and has never taken anything, been in trouble with the civilian law, or had any other problems.  However, her misconduct discharge, which is reflected as larceny of government funds, continually shows up when she is applying for city, state, or Federal positions and is damaging her career.  

3.  The applicant provides a self-authored statement and a copy of her Texas driver license in support of 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.  After having had prior service, the applicant’s record shows she enlisted in the Regular Army (RA) and entered active duty on 26 February 1991.  She was trained in and awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).  Her record documents no acts of valor or significant achievement.

3.  On 19 May 1993, a General Court-Martial (GCM) found the applicant guilty of violating Article 121 of the Uniform Code of Military Justice (UCMJ), between on or about 1 December 1991 and 31 December 1992, for stealing variable housing allowance (VHA) of a value of about $4,144.02.  The resultant sentence was a reduction to private (PV1)/E-1, forfeiture of all pay and allowances, confinement for 8 months, and a BCD.

4.  On 11 July 1994, the United States Army Court of Military Review, after consideration of the entire record, held that the findings of guilty and sentence approved by the convening authority in the applicant's case were correct in law and fact.  Accordingly, it affirmed the guilty findings and the sentence.  

5.  On 16 February 1995, GCM Order Number 25, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, directed, that, Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, the BCD portion of the applicant’s sentence be duly executed.  

6.  On 24 March 1995, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued upon her separation shows she was separated under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial and that she received a BCD.  This document also confirms she completed a total of 4 years, 11 months, and 5 days of creditable active military service.  

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 provides the policies and procedures for separating members with a dishonorable discharge (DD) or a BCD.  It stipulates, in pertinent part, that a Soldier will be given a DD or a BCD pursuant only to an approved sentence of a general or a special court-martial, and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.  

8.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that her BCD discharge be upgraded was carefully considered.  However, the evidence of record confirms that trial by court-martial was warranted by the gravity of the offense for which she was 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.  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.  However, in this case, the evidence of record reveals no error or injustice related to the applicant’s court-martial and/or her subsequent discharge considering the available facts of the case. 

4.  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)                                         AR20090007513



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ABCMR Record of Proceedings (cont)                                         AR20090007513



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