IN THE CASE OF:	  

		BOARD DATE:	    23 February 2010

		DOCKET NUMBER:  AR20090015944 


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 changed to an uncharacterized discharge. 

2.  The applicant states, in effect, that the Department of Veterans Affairs (VA) administrative decision letter does not address the questionably abnormal brain study (evidence of insanity), which is the basis of her request. 

3.  The applicant provides a Standard Form 513 (Clinical Record), a VA letter to the applicant, and a VA Regional Office Administrative Decision 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 military records show she enlisted in the Regular Army on 28 November 1983.  She was awarded the military occupational specialty of materiel storage and handling specialist, and was promoted to pay grade E-4.  The available records do not show any significant acts of achievement or valor during her military service.

3.  Records show the applicant was convicted by a general court-martial for wrongful distribution of methamphetamines on three separate occasions during the period 13 August 1986 to 15 September 1986.

4.  Headquarters, 2nd Infantry Division, General Court-Martial Order Number 7, dated 31 January 1987, shows the sentence was adjudged on 4 December 1986.  The applicant's sentence consisted of a reduction to the grade of private E-1, confinement for 4 years, and discharge from the Army with a bad conduct discharge.  The sentence was approved and, except for the part of the sentence extending to a bad conduct discharge, ordered to be executed.

5.  The United States Army Court of Military Review (USACMR) considered the applicant's petition, through counsel, for deferment of confinement.  The petition was denied.  The applicant, through counsel, appealed, contending errors were made.  The USACMR considered the errors personally raised by the applicant and found them to be without merit.  On 19 May 1987, the USACMR affirmed the findings of guilty and the sentence.

6.  On 11 December 1987, the sentence having been affirmed, the bad conduct discharge was ordered executed.

7.  On 15 January 1988, the applicant was discharged under provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of a court-martial.  The DD Form 214 the applicant was issued shows she completed 3 years and 6 days of active military service.  Item 24 (Character of Service) of this form shows the entry "Bad Conduct" and item 29 (Dates of Time Lost During This Period) shows the entry "After normal ETS 861204-880115."

8.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted Soldiers.  Paragraph 3-9 of the regulation in effect at the time provides that an uncharacterized separation will be described as an entry level separation if processing is initiated while a member is in entry level status.  Entry level status is defined in the glossary as the first 180 days of continuous active duty for Regular Army members.

9.  Army Regulation 635-200, paragraph 3-11, provides 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.  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.  Records show the applicant was convicted by a general court-martial for wrongful distribution of methamphetamines on three separate occasions.  Conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  While the applicant indicates evidence of insanity as justification of her request, there is no evidence that she raised this issue at the time of her trial or appellate review.  In addition, the documents she submitted do not establish that she is insane.  

3.  The applicant was given a bad conduct discharge pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.

4.  The applicant had well over 180 days of active duty.  As such, she could not have been issued an uncharacterized discharge.

5.  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.

6.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.  Given the seriousness of the offenses for which the applicant was convicted, her record was not considered sufficiently meritorious to warrant clemency in this case.  As a result, there is no evidentiary basis upon which to support the applicant's request to upgrade her discharge.

7.  The Board does not upgrade properly-issued discharges for the sole purpose of establishing eligibility for other programs or benefits.
8.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090015944



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ABCMR Record of Proceedings (cont)                                         AR20090015944



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