IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20090021888 


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 an upgrade of her bad conduct discharge.

2.  The applicant states she faced sexual discrimination and was raped several times by her superiors while she was in the service.  She also states she was entrapped, which led to charges for her trial by court-martial.

	a.  She states she was sexually harassed on two occasions while in basic combat training (BCT) at Fort Jackson, SC.  Her noncommissioned officer (NCO) told her she would be dishonorably discharged if she did not cooperate with him.  She adds she was very confused and eventually submitted to his demands.

	b.  She states she attended advanced individual training and was awarded military occupational specialty (MOS) 76Y (Supply Clerk).  She was then sent overseas to a very secluded area in Germany.  She adds that the assignment and the mental scars of her experience in BCT led to her depression.

	c.  She states she was assigned to work for an infantry NCO who had no respect for black women in the Army and he was a racist.  She reported the NCO to her first sergeant only to find out that he was also a racist.  She states the NCO then told her she would be dishonorably discharged if she did not have sex with him.  She adds that sexual harassment was occurring on a daily basis and one day while she was in the NCO's office, he raped her.

	d.  She then tried to focus on her duties, but the NCO told her she would not get promoted unless she had sex with him.  She resisted the NCO's demands and she was never promoted while serving in Germany.

	e.  She was then assigned to Fort Polk, LA, and made a commitment to herself that she would not allow anyone to sexually abuse her in return for a promotion.  She also committed to becoming the best Soldier she could.  She adds that she was promoted to private first class (PFC), then to specialist four (SP4), and shortly thereafter to sergeant (SGT).  She was also recommended for and promoted to staff sergeant (SSG).  She states this all occurred within a period of 5 years.

	f.  She states she was then reassigned to Germany.  She adds she was assigned to work for a lieutenant who was a racist.  He harassed her every day and told her he was going to ruin her career.

	g.  She states that her battalion commander offered her a field-grade Article 15, but she refused it because she was innocent.  She informed the battalion commander that she had been entrapped and was set-up for a court-martial.

	h.  She states she was held past the date of her expiration term of service, reduced to private (E-1), and received a bad conduct discharge.

	i.  She concludes by stating that she left home to serve and fight for her country; however, it turned into a living nightmare that has not stopped to this day.  She adds that she continues to be mentally and physically tortured by the trauma she suffered in the military.

3.  The applicant provides three exhibits, three character-reference letters, and an extract of Code of Federal Regulations (CFR), Title 32 (National Defense), in support of her application.

	a.  The three exhibits are typed, but unsigned documents that state:

		(1)  What happened to the applicant could happen to anyone and it is America's disgrace;

		(2)  SGT A____ J. T____ was sentenced to confinement at Fort Leavenworth, KS.  He was willing to testify on her behalf that she was innocent and had nothing to do with the black-marketing of cigarettes.  However, the Judge Advocate General officer serving as her lawyer did not have SGT T____ testify.  It also states that SP4 T____ D____ testified to the applicant's innocence and that a German National, Ms. M____, failed to show up to testify against her.

		(3)  The applicant was charged under Article 81, Uniform Code of Military Justice (UCMJ), of conspiracy with SGT T____ and SP4 D____ to unlawfully sell 148 cartons of illegally-obtained cigarettes to Ms. M____.  The cigarettes were given to a PFC who had been busted for possession of ration cards and who was used by the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) to set up the applicant and two others.  The cigarettes were planted in the trunk of the applicant's car by the PFC, which constitutes entrapment.  The applicant testified under oath at her court-martial that she was innocent.

	b.  The three character-reference letters, all notarized on 24 August 2009, are from the applicant's godmother, godsister, and pastor.  They attest to the applicant's personal character, work ethic, and contributions to her community.  They also request that the applicant be given a second chance to start a new life.

	c.  The extract of CFR, Title 32, section 632 (Use of Force by Personnel Engaged in Law Enforcement and Security Duties), subsection 3 (Policy), shows entrapment (i.e., inducing someone to commit an offense in order to prosecute that person) is not permitted in law enforcement or security duties.

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 for a period of 3 years on 29 December 1980.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service) that she served overseas in Germany from 11 June 1981 through 9 June 1983 and from 1 March 1985 through 12 June 1988 and

	b.  item 18 (Appointments and Reductions) that she was advanced/promoted with dates of rank as follows:
   
* private (PVT/E-2) – 29 June 1981
* PFC (E-3) – 29 December 1981
* SP4 (E-4) – 1 August 1983
* SGT (E-5) – 2 April 1985
* SSG (E-6) – 21 July 1986

4.  At a special court-martial in April 1988, the applicant pled not guilty to all charges and specifications.

	a.  She was found guilty of the charge and specification of:

		(1)  conspiring with two other Soldiers to commit an offense under the UCMJ of unlawfully selling 96 cartons of illegally-obtained cigarettes of a value in excess of $500.00 to a German National not authorized to purchase such goods and in order to effect the object of the conspiracy, the applicant and the two other Soldiers did sell the unlawfully-obtained tax-free cigarettes to a German National at divers times between 1 May 1987 and 7 August 1987;

		(2)  violating a lawful general regulation by wrongfully selling unlawfully-obtained tax-free cigarettes of a value in excess of $500.00 to a German National not authorized to purchase such goods at divers times between 1 May 1987 and 7 August 1987; and

		(3)  violating a lawful general regulation by wrongfully transporting rationed merchandise (52 cartons of cigarettes of a value less than $500.00) for the purpose of transfer to a person not authorized to receive such goods on or about 7 August 1987.

	b.  She was sentenced to be reduced to the grade of E-1, forfeiture of $447.00 pay per month for 6 months, and a bad conduct discharge.

	c.  On 1 June 1988, the convening authority approved the sentence, except for the bad conduct discharge, and ordered it executed.

5.  Upon consideration of the entire record, including consideration of the issue personally specified by the appellant, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence as approved.  On 16 May 1990, the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 12 June 1990 with a bad conduct discharge.  At the time of her discharge she had completed 9 years, 5 months, and 14 days of net active service during the period under review.

7.  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.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  A member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial after completion of appellate review and after such affirmed sentence has been ordered duly executed.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her bad conduct discharge should be upgraded because she was entrapped, which led to the charges for her trial by court-martial.  She also contends that she suffered racial discrimination and sexual abuse from her superiors while she was in the Army.  She further contends that her post-service behavior demonstrates her personal commitment to her family and community and should be considered.

2.  The applicant's contentions that she suffered racial discrimination and sexual abuse during her military service were considered.

	a.  The applicant states she was never promoted while serving in Germany during her initial overseas tour as a result of discrimination and sexual harassment.  However, records show the applicant was advanced to PVT/E-2 within 2 weeks of her arrival in Germany and promoted to PFC/E-3 just 6 months later.

	b.  While the sincerity of the applicant's contentions is not doubted, she provides no evidence that she reported any act(s) of racial discrimination or sexual abuse to her chain of command, chaplain, or an appropriate Army agency (e.g., Equal Opportunity Office, Inspector General's Office, CID) to investigate her claims.  Thus, the applicant's allegations alone provide insufficient evidence to substantiate her claims.

	c.  The applicant's contention that she was entrapped and set up for the charges that led to her court-martial relate to evidentiary/mitigating matters that could have been raised in the court-martial appellate process and furnish no basis for recharacterization of her discharge.

3.  The applicant's post-service conduct and work ethic were considered; however, they are not sufficiently mitigating to warrant relief.

4.  The applicant's trial by court-martial was warranted by the gravity of the offenses for which she was charged.  The conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process.

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.  After a thorough and comprehensive review of the applicant's military service record, it is concluded that based on the seriousness of the offenses for which she was convicted, clemency is not appropriate.

7.  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)                                         AR20090021888



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ABCMR Record of Proceedings (cont)                                         AR20090021888



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