IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100011343 


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 her 1989 bad conduct discharge be upgraded to a general discharge and, in effect, her titling action resulting from her court-martial record be removed from the National Crime Information Center (NCIC) and Defense Central Investigations Index (DCII) database.

2.  The applicant states she has been turned down for jobs because her court-martial record shows up in her permanent file.  She states she is being denied employment because of her record and notes she is working on a degree in criminal justice and trying to get a job working with troubled teenagers or as a parole officer.  She states she is trying to better herself and help troubled teens.

3.  The applicant provides no additional 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 available records indicate the applicant enlisted in the Regular Army on 
5 June 1986.  She successfully completed the training requirements and was awarded military occupational specialty (MOS) 71L (Administrative Specialist) and she was assigned to a military police unit in Korea in her MOS.  The highest pay grade she attained was E-2.

3.  In April 1987, the applicant was convicted by a special court-martial of:

* Violating a lawful general regulation by owning, possessing and transporting a switchblade knife
* Assault on a woman by cutting her on the face with a dangerous weapon (to wit: a knife)
* Assault on another woman by stabbing her in the back with a knife and thereby intentionally inflicting grievous bodily harm upon her (to wit: a deep cut)

4.  The court sentenced the applicant to a forfeiture of $300.00 pay for 6 months, reduction to pay grade E-1, confinement for 6 months, and a bad conduct discharge.  The convening authority approved the sentence.  The U.S. Army Court of Military Review affirmed the findings and sentence on 31 May 1988.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army discharged the applicant on 26 April 1989 under the provisions of Army Regulation 635-200 (Personnel Separations) by reason of conviction by a court-martial.  This form further lists the applicant's character of service as "bad conduct."

6.  References:

	a.  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.

	b.  Army Regulation 635-200 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.
	c.  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.

   d.  Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions.  It states, in pertinent part, that titling only requires credible information that an offense has been committed.  It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a lack of credible information to support the initial titling determination.

   e.  Army Regulation 195-2 (Criminal Investigation Activities), paragraph 4-3d(1) states that the disclosure of criminal information originated or maintained by U.S. Army Criminal Investigation Command (USACIDC) may be made to any Federal, State, local, or foreign law enforcement agency that has an investigative or law enforcement interest in the matter disclosed, provided the disclosure is not in contravention of any law, regulation, or directive as applied to law enforcement activities.  Disclosures under this paragraph to a non-Department of Defense law enforcement element is a routine use under the Privacy Act.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her court-martial record is precluding her from pursuing employment and bettering herself is not sufficiently compelling or mitigating to warrant the relief requested.

2.  The applicant's trial by court-martial was warranted by the gravity of the offenses charged.  Her conviction and discharge were effected in accordance with applicable law and regulations.  Therefore, there is no legal basis for granting the applicant's request for relief.

3.  The evidence of record failed to establish a basis upon which clemency could be granted and upon which the severity of the punishment imposed could be moderated with an upgrade of the applicant's bad conduct discharge.


4.  By law and regulation, titling only requires credible information that an offense has been committed.  Regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the DCII is to show either mistaken identity or a lack of credible information to support the initial titling determination.  The applicant has failed to provide evidence satisfying this standard for removal.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100011343



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ABCMR Record of Proceedings (cont)                                         AR20100011343



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