BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090017943 


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 a general discharge (GD) under honorable conditions.

2.  The applicant states she believes her BCD was inequitable because it is based on one isolated incident within 6 years of active Army service, and prior to this incident she had no adverse actions taken against her.  She states that in civilian life she is still a productive citizen and mother of four.  She also states that although the case had been appealed and she was convicted of a crime she said "I'm sorry" in court and that still remains.  She further states she still denies having hit the victim, however, she was there and she accepts that.  Only God knows the truth.  

3.  The applicant provides no documentation 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’s record shows she enlisted in the Regular Army (RA) and entered active duty on 14 November 1989.  She was trained in and awarded military occupational specialty (MOS) 92A (Automated Logistical Specialist).  

3.  Her DA Form 2-1 (Personnel Qualification Record) shows:

* in item 5 (Oversea Service) she served in Southwest Asia from 
24 December 1990 through 9 February 1991
* in item 9 (Awards, Decorations and Campaigns) she earned the Army Service Ribbon, National Defense Service Medal, Kuwait Liberation Medal, Southwest Asia Service Medal with 2 bronze service stars, Valorous Unit Award, Army Good Conduct Medal, and Marksman Marksmanship Qualification Badge with Rifle (M-16) Bar
* in item 18 (Appointments and Reductions) she was promoted to specialist/E-4 on 1 February 1992 and subsequently reduced to private/
E-1 on 18 January 1995
* in item 21 (Time Lost Title 10, USC, Section 972) she had a total of 557 days lost due to confinement

4.  A general court-martial (GCM) adjudged on 7 September 1994 found the applicant guilty of violating the following Articles of the Uniform Code of Military Justice (UCMJ):  

* Article 81, conspiracy to commit aggravated assault on or about 
10 March 1994
* Article 90, disobeying a lawful command from a superior commissioned officer, on or about 10 March 1994
* Article 107, for giving a false official statement on or about 11 March 1994
* Article 128, Specification 3 and Specification 4, aggravated assault by striking specialist Cxxxxx with a blunt instrument on or about 10 March 1994
* Article 134, Specification 1, wrongful solicitation to commit aggravated assault on or about 9 March 1994, and Specification 2, wrongfully communicating a threat on or about 9 March 1994

5.  The resultant GCM sentence was a reduction to the grade of private/E-1, confinement for 2 years, and a BCD.

6.  On 17 July 1996, the U.S. Army Court of Criminal Appeals, after consideration of the entire record including consideration of the issues personally specified by the applicant, found:

	a.  reasonable doubt of the applicant's guilt of solicitation (Specification 1, Charge VI).

	b.  aggravated assault by a means likely to produce grievous bodily harm (Specification 3, Charge V) and aggravated assault by intentionally inflicting grievous bodily harm (Specification 4, Charge V) could not be simultaneously sustained with the finding of guilty.

7.  The findings of guilty of Specification I of Charge VI and Specification 3 of Charge V were set aside and dismissed.  The remaining findings of guilty were found to be correct in law and fact, and affirmed.  Accordingly, the Court affirmed only so much of the sentence as provided for a BCD, confinement for 22 months, and reduction to private/E-1.

8.  On 31 July 1997, GCM Order Number 178, issued by Headquarters, U.S. Army Artillery Center, Fort Sill, Oklahoma, shows Article 71(c) of the UCMJ having been complied with and the sentence having been affirmed, ordered the execution of the BCD.

9.  On 5 September 1997, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  The DD Form 214 shows: 

* in item 12c (Net Active Service this Period) a total of 6 years, 3 months, and 4 days of creditable active military service
* in item 24 (Character of Service) BCD
* in item 25 (Separation Authority) chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)
* in item 28 (Narrative Reason for Separation) as a result of a court-martial

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:  

	a.  Chapter 3 provides 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.

	b.  Paragraph 3-7b provides that a GD 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.  The applicant's request that her BCD should be upgraded was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  In this case, the evidence reveals no error or injustice related to the applicant's court-martial conviction and/or her subsequent discharge.  Her record reveals no acts of valor or significant achievement.  Her overall record of service is not sufficiently meritorious to support an upgrade of her BCD given the gravity of the offenses that resulted in her court-martial conviction.  Therefore, there is an insufficient evidentiary basis to support clemency in this case.

3.  Any redress by the ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.

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)                                         AR20090017943



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ABCMR Record of Proceedings (cont)                                         AR20090017943



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