IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010501 


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 served her country for nine years.  She adds that her service in the Army included two reenlistments during which she received multiple awards and commendations.

   a.  She states she exercised poor judgment during her ninth year of service. She became an alcoholic and suffered from major clinical depression.  She adds she went absent without leave (AWOL), spent a year in confinement, and received a bad conduct discharge.

   b.  She states, with the exception of her last year of service in the military, she is very proud of her record and it was the best experience of her life.  She adds she has changed her life through God, she works faithfully on her recovery, and now realizes that her disease does not define who she is.

   c.  She concludes by stating she looks forward to a favorable decision on her request for upgrade of her discharge.

3.  The applicant provides no additional documentary evidence in support of her request.


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 U.S. Army Reserve (USAR) Delayed Program (DEP) on 1 October 1979 for a period of 6 years.  She was discharged from the USAR DEP on 31 October 1979 and she enlisted in the Regular Army (RA) on
1 November 1979 for a period of 4 years.  Upon completion of training she was awarded military occupational specialty (MOS) 98C (Electronic Warfare/ Cryptographic Analyst).

3.  On 17 December 1980, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for, on or about 13 December 1980, with intent to defraud, making in its entirety the signature of her commander on a DA Form 31 (Request and Authority for Leave), which would, if genuine, apparently operate to the legal prejudice of another; and for falsely making a certain instrument purporting to be another's official DA Form 31, well knowing the document to be false and unauthorized.

4.  The applicant reenlisted in the RA on 20 May 1983 for a period of 4 years.

5.  On 17 November 1983, the applicant received NJP under Article 15, UCMJ, for, on or about 2 November 1983, wrongfully using habit forming drugs, to wit:  opiates and amphetamines.

6.  The applicant completed training and she was awarded MOS 71L1OF5 (Postal Clerk) as her primary MOS in February 1985.

7.  The applicant reenlisted in the RA on 25 March 1986 for a period of 3 years.

8.  On 25 August 1986, the applicant received NJP under Article 15, UCMJ, for being AWOL from on or about 16 July to on or about 8 August 1986.

9.  On 23 March 1988, the applicant was arraigned and tried at a general court-martial.

	a.  She pled guilty and she was found guilty of the charges and specifications of:

* being AWOL from 2 February to 17 February 1988
* possession of .5 grams of methamphetamine on 18 February 1988
* larceny of 25 checks on 15 January 1988
* forgery of a check in the amount of $400.00 on 15 January 1988
* forgery of a check in the amount of $500.00 on 19 January 1988

   b.  She was sentenced to a bad conduct discharge, confinement for
18 months, forfeiture of all pay and allowances, and reduction to the rank/grade of private (PV1)/E-1.

   c.  On 20 April 1988, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement for 9 months, forfeiture of all pay and allowances, and reduction to PV1/E-1 and, except for the bad conduct discharge, ordered the sentence executed.  The applicant was credited with 35 days of pretrial confinement against the sentence to confinement.

10.  On 18 July 1988, the U.S. Army Court of Military Review considered the entire record, including the applicant's appeal that her plea of guilty to possession of methamphetamine was improvident as there was no admission during the providence inquiry of possession or constructive possession, and errors personally asserted by the applicant.  The Court disagreed with her appeal, found the asserted errors to be without merit, and held the findings of guilty and the sentence as approved by the convening authority correct in law and fact.  Accordingly, the findings of guilty and the sentence were affirmed.

11.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, General Court-Martial Order Number 575, dated 9 September 1988, announced that the unexecuted portion of the approved sentence to confinement in the applicant's case was remitted.

12.  Headquarters, U.S. Army Correctional Activity, Fort Riley, General Court-Martial Order Number 85, dated 17 January 1989, confirmed that in the general court-martial case of the applicant, the sentence was affirmed.  The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

13.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged on 27 January 1989 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, as a result of court-martial, with a bad conduct discharge.

   a.  At the time of her discharge she had completed 2 years and 2 months of net active service this period; 6 years, 4 months, and 24 days of total prior active service; and 1 month of total prior inactive service.

   b.  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon, Overseas Service Ribbon (2nd Award), Noncommissioned Officer Professional Development Ribbon, Marksman Marksmanship Qualification Badge with (M-16) Rifle and Grenade Bars, Army Achievement Medal (4th Award), Army Commendation Medal, and Army Good Conduct Medal (2nd Award).

   c.  Item 29 (Dates of Time Lost During This Period) shows she had time lost from 16 July through 7 August 1986 and from 2 February through 8 September 1988.

14.  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.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.
	
   a.  Paragraph 3-10 states a Soldier 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.  Paragraph 3-7b states 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 her bad conduct discharge should be upgraded because she received multiple awards and commendations during her initial enlistment and two reenlistments; however, she exercised poor judgment during her last year of active service.

2.  The applicant's awards and decorations are acknowledged.  However, records also show the applicant received NJP on three occasions (i.e., in December 1980, November 1983, and August 1986).  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

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

4.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board 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 therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  The applicant's post-service personal commitment to her recovery since her discharge is noteworthy; however, it is not a basis to warrant an upgrade of her discharge.

6.  In view of the foregoing, 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)                                         AR20100010501



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ABCMR Record of Proceedings (cont)                                         AR20100010501



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