IN THE CASE OF:	  
								  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100015289 


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.

2.  She states, in effect, that she was raped on 8 May 1980 and as a result, she was not in the right state of mind and made some poor choices.  She contends she was a good Soldier who went through some very trying times and she stills suffers because of the past.

3.  She provided a copy of a Department of Veterans Affairs (VA) Rating Decision, dated 24 January 2006, in support of her request.  Although she refers to a copy of a police report, it is not included with 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.  Her military records show she enlisted in the Regular Army on 23 January 1976.  After completion of basic combat and advanced individual training, she was awarded military occupational specialty 71M (Chaplain Activities Specialist).  She served through continuous reenlistments and achieved the grade of specialist four/E-4 on 7 August 1977.

3.  A copy of her DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 5 (Oversea Service) and item 35 (Record of Assignments) that she served two tours of duty in Hawaii during the periods 13 August 1979 through 3 September 1980 and 21 November 1981 through 20 November 1984, respectively.

4.  Item 21 (Lost Time) of her DA Form 2-1 shows she was absent without leave (AWOL) from 18 to 19 November 1980.

5.  Special Court-Martial (SPCM) Order Number 5, Headquarters, U.S. Army Support Command, HI, dated 7 November 1984, shows that on 19 September 1984 she entered a plea of guilty to the following charges:

	a.  three specifications of violating Article 132 of the Uniform Code of Military Justice (UCMJ) for making a false marriage license and two false rental agreements for the purpose of obtaining approval of a claim against the United States in the amount of $8,754.48 and

	b.  one specification of violating Article 121 of the UCMJ by stealing currency in excess of $100.00 from the United States.

6.  On 19 September 1984, she was sentenced to a forfeiture of $397.00 pay for 6 months, reduction to private/E-1, and a BCD.

7.  On 7 November 1984, the SPCM convening authority approved the sentence as adjudged on 19 September 1984.  All portions of the sentence were approved and ordered executed except for the BCD.

8.  On 3 December 1984, she was placed on excess leave pending the findings of the appellate review.  The findings of the U.S. Army Court of Military Review are not available to this Board.

9.  SPCM Order Number 38, Headquarters, U.S. Army Training Center and Fort Dix, dated 12 July 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered her BCD sentence to be executed.

10.  The applicant was accordingly discharged on 15 October 1985 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), section IV, chapter 3, as a result of court-martial with a bad conduct discharge.  She completed 9 years, 8 months, and 21 days of active service with 2 days of lost time due to AWOL and 313 days of excess leave.

11.  Her record contains no indication she applied to the Army Discharge Review Board for an upgrade of her discharge by within that board's 15-year statute of limitations.

12.  The applicant provides a copy of a VA Rating Decision.  This document shows she was granted service-connected disability for post-traumatic stress disorder (PTSD) with panic attacks, anxiety, and insomnia.  The police report is not included within this document; however, a copy of a personal statement from the applicant to the VA, dated 17 July 2005, is included.

13.  This statement describes the events which led to her PTSD.  On 8 May 1980, while stationed with the 25th Infantry Division, Schofield Barracks, HI, she was sexually assaulted at gunpoint by two men.  It was at that time that she began to experience emotional, physical, and mental problems.

14.  She continues to state she was reassigned to Fort Drum, NY, and subsequently reassigned to Fort Meade, MD, on 3 September 1980 as a result of the event.  However, on 18 November 1981 she was reassigned to Schofield Barracks, HI.  She states she was afraid to relive the events which took place during her previous tour and befriended a gay male and they moved in together.  He provided her with a sense of security.  She apologized for the things she did which led to her court-martial, but attributed her lack of judgment to the rape.

15.  Army Regulation 635-200 governs the separation of enlisted Soldiers on active duty.  Paragraph 11-2 states that a member will be given a BCD pursuant only to an approved sentence of a general or SPCM after completion of appellate review and after such affirmed sentence has been ordered duly executed.

16.  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.

17.  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.

18.  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 for an upgrade of her discharge was carefully considered; however, in the absence of supporting evidence, it does not show merit.

2.  The applicant was properly discharged pursuant to a sentence by an SPCM conviction with no evidence of any violation of her rights.  Her contentions relate to evidentiary/mitigating matters which could have/should have been finally and conclusively adjudicated in the appellate process.

3.  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 and the discharge appropriately characterizes the misconduct for which she was convicted.

4.  The applicant's contentions have been noted.  However, she was convicted by an SPCM as a result of significant acts of misconduct.  In view of the foregoing, her personal conduct does not warrant the relief requested.



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 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)                                         AR20100015289



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ABCMR Record of Proceedings (cont)                                         AR20100015289



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