IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019965 


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, in effect, an upgrade of her bad conduct discharge.

2.  The applicant states that since her discharge she has gotten clean and she turned her life around for the better.  She also suffered and continues to suffer from a mental illness and she is currently on disability for this illness.

3.  The applicant did not provide any additional evidence.

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 records show she enlisted in the Regular Army for a period of 4 years on 8 April 1986 and held military occupational specialty 88N (Transportation Management Coordinator).  She also executed a 6-year reenlistment on 5 September 1989 and attained the rank/grade of specialist/E-4.

3.  Her awards and decorations include the Army Service Ribbon, Army Achievement Medal, Army Good Conduct Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Noncommissioned Officer Professional Development Ribbon, and National Defense Service Medal.

4.  On 19 June 1990, she pled guilty at a special court-martial to two specifications of committing larceny on or about 24 March 1990 and between 1 April 1989 and 19 February 1990 and one specification of obtaining telephone services by false pretenses on or about 24 March 1990.  The court sentenced her to confinement for 2 months, a forfeiture of $482.00 pay per month for 2 months, a reduction to private/E-1, and a bad conduct discharge.  The sentence was adjudged on 19 June 1990.

5.  On 8 August 1990, the convening authority approved the sentence and, except for the part of the sentence extending to a bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Adjutant General of the Army for review by the U.S. Army Court of Military Review.

6.  On 13 February 1991, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

7.  Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, Special Court-Martial Order Number 4, dated 28 June 1991, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge sentence executed.

8.  The applicant was discharged from the Army on 20 August 1991.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations) with a bad conduct discharge.  This form further confirms she completed 5 years, 2 months, and 24 days of creditable military service and had 50 days of lost time.

9.  There is no indication in her available medical records that she was diagnosed with a mental illness or that she addressed such illness with medical officials or her defense counsel.

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.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her discharge should be upgraded.

2.  The evidence of record shows that her trial by a special 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 characterized the misconduct for which she was convicted.  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.

3.  After a review of the applicant's entire record of service, it is clear that her service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade the applicant's discharge to either an honorable or 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)                                         AR20090019965



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ABCMR Record of Proceedings (cont)                                         AR20090019965



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