IN THE CASE OF:
BOARD DATE: 20 April 2010
DOCKET NUMBER: AR20090017763
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:
* she was 19 years old when she was court-martialed in Afghanistan
* she takes full responsibility for her actions
* her punishment was equitable but too severe
* she was sentenced to 4 months of confinement but she was released 1 month early due to good behavior
* since her discharge she has upheld exemplary behavior
* she went back to school for her undergraduate study
* she got a job
* she accumulated a 3.6 grade point average
* she wants to pursue a bachelor's degree in business
* she wants to work for the Federal government
* she wants her discharge upgraded to a general discharge so she doesn't have to live with her one mistake holding her back
3. The applicant provides:
* military personnel records
* three character reference letters
* college transcript
CONSIDERATION OF EVIDENCE:
1. The applicant was ordered to active duty from the U.S. Army Reserve on 4 August 2004. She served as an administrative specialist in Afghanistan. She was promoted to specialist/E-4 on 3 January 2005.
2. On 10 November 2005, the applicant was convicted in accordance with her pleas by a general court-martial of conspiring to commit theft of certain mail matter, signing a false official statement, and stealing certain mail matter (packages addressed to U.S. service members, civilians, and/or Army and Air Force Exchange Service (AAFES), which packages were then in the Bagram post office, before said packages were delivered to said U.S. service members, civilians, and/or AAFES). She was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to be confined for 4 months, and to be discharged from the service with a bad conduct discharge. On 14 January 2006, the convening authority approved the sentence.
3. The decision of the U.S. Army Court of Criminal Appeals is not available. However, on 7 September 2006, the convening authority ordered the bad conduct discharge to be executed, indicating the sentence was affirmed.
4. Accordingly, the applicant was discharged with a bad conduct discharge on 22 May 2007 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial. She had served a total of 2 years, 6 months, and 12 days of creditable active service with 97 days lost time.
5. In support of her claim, the applicant provided three character reference letters from a friend and two employers. They attest that the applicant is reliable, dependable, a hard worker, and a productive and contributing member of society. They also state the applicant has a good work ethic, she exceeded expectations in her position, and she progressed rapidly in her career.
6. 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.
7. 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.
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 Army Board for Correction of Military Records 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 character reference letters submitted on behalf of the applicant fail to show that her discharge was unjust and should be upgraded.
2. 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.
3. The applicant's record of service included serious mail theft offenses for which general court-martial charges were preferred. As a result, her record of service was not satisfactory. Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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) AR20090017763
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