IN THE CASE OF:	

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090015568 


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.

2.  The applicant states, in effect, that she was not the one with the drugs and she had no knowledge of their presence.  She apologizes to the Army and points out that she turned her life over to Jesus several years ago, that she is not the same person she was years ago, that she is older now and more responsible, and that she has improved her life greatly.  She also indicates that she would like to obtain Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), six character reference letters, a Certificate of Award, and a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 15 February 1983 for a period of 3 years.  She successfully completed basic combat training and advanced individual training in military occupational specialty 94B (food service specialist).

3.  On 13 February 1984, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to her appointed place of duty.  Her punishment consisted of a reduction to E-2 (suspended) and a forfeiture of pay.  On 24 February 1984, the suspended portion of the applicant's punishment was vacated.

4.  Apparently in June 1984, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The following charges were shown on her request:  possession and distribution of 14 grams of marijuana.  However, the separation authority denied the applicant's request on 6 July 1984.

5.  On 25 July 1984, in accordance with her plea, the applicant was convicted by a general court-martial of distributing marijuana.  She was sentenced to be reduced to E-1, to forfeit all pay and allowances, to be confined at hard labor for 10 months, and to be discharged from the service with a bad conduct discharge.  On 28 August 1984, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 9 months, forfeiture of all pay and allowances, and reduction to E-1.

6.  The decision of the U.S. Army Court of Military Review is not available.  However, on 12 April 1985, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.

7.  Accordingly, the applicant was discharged with a bad conduct discharge on 3 May 1985 under the provisions of Army Regulation 635-200, chapter 3, as a result of a court-martial.  She had served a total of 1 year, 7 months, and 3 days of creditable active service with 226 days of lost time due to confinement.

8.  In support of her request, the applicant provided six character reference letters from friends and her pastor.  They attest that the applicant is nice, stable, responsible, an asset to the community, dependable, and reliable.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 3 of this regulation states 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 affirmed sentence ordered duly executed.

10.  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.

11.  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.  Good post-service conduct alone is not a basis for upgrading a discharge.

2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  The character reference letters submitted on behalf of the applicant fail to show that her discharge was unjust and should be upgraded.

4.  The applicant's contentions that she was not the one with the drugs and she had no knowledge of their presence relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial appellate process.

5.  Trial by court-martial was warranted by the gravity of the offense 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.

6.  The applicant's record of service included one instance of nonjudical punishment, one general court-martial conviction for drug distribution, and 226 days of lost time.  As a result, her record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general under honorable conditions 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)                                         AR20090015568



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ABCMR Record of Proceedings (cont)                                         AR20090015568



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