IN THE CASE OF:	

		BOARD DATE:	 17 December 2009 

		DOCKET NUMBER:  AR20090009158 


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 (BCD) be upgraded to an honorable discharge.

2.  The applicant states that she served honorably except for the one incident that was provoked over a period of time.  She states that she is seeking Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides no additional documents 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.  The applicant enlisted in the Regular Army on 27 February 1990 for a period of 3 years.  Her highest rank/grade held was private first class (PFC)/E-3.  She served in Korea from July 1990 to September 1991.

3.  On 29 October 1991, the applicant was found guilty contrary to her pleas by a special court-martial of assaulting a private (PVT)/E-2 by cutting her with a dangerous weapon, a broken bottle, and by wrongfully communicating to the PV2 a threat to kill her.  She was sentenced to a reduction to the grade of private/E-1, a forfeiture of $502.00 pay per month for 3 months, confinement for 3 months, and to be discharged from the service with a BCD.

4.  On 31 December 1991, the convening authority approved the sentence and, except for that portion extending to a BCD, ordered it to be executed.

5.  On an unknown date, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

6.  The BCD was ordered to be executed on 31 December 1992.

7.  The applicant was accordingly discharged on 19 February 1993 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  She completed a total of 2 years, 9 months, and 10 days of creditable active service with 75 days of lost time due to confinement.

8.  On 12 November 1997, the Army Discharge Review Board denied the applicant’s request for an upgrade of her BCD.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  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.

11.  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.

12.  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 contends that she served honorably and had only one isolated incident which was provoked over a period of time.

2.  The applicant’s record of service shows she was convicted by a special court-martial of assaulting a PV2 by cutting her with a dangerous weapon, a broken bottle, and by wrongfully communicating to the PV2 a threat to kill her.

3.  Based on the seriousness of the misconduct for which the applicant was convicted, her service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting the applicant's requested relief.

4.  The applicant states that she was seeking an upgrade of her discharge to obtain VA health care.  However, a discharge is not upgraded for the purpose of obtaining VA benefits.

5.  The applicant's 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 and the discharge appropriately characterizes the misconduct for which the applicant was convicted.



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)                                         AR20090009158



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ABCMR Record of Proceedings (cont)                                         AR20090009158



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