BOARD DATE:	  18 January 2011

		DOCKET NUMBER:  AR20100016730 

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 upgrade of her under other than honorable conditions discharge to an honorable discharge.

2.  She states, in effect, she was confined for 100 days at Fort Leavenworth, KS, she successfully completed the required programs, and she was released on 16 December 1987.  She further states she has not been involved in any illegal action since then and, therefore, requests to have her DD Form 214 (Certificate of Release or Discharge from Active Duty) changed to an honorable discharge so she can apply for Veteran benefits and employment.

3.  She provides:

* her DD Form 214
* a State of North Carolina Criminal Record Search
* a Cumberland Country Sheriff's Officer Wanted/Warrant Check
* two Teacher Certificates
* an undated newspaper article

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 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 record shows she was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 24 January 1984 and she was promoted to first lieutenant on 24 July 1985.

3.  General Court-Martial (GCM) Order Number 1, issued by Headquarters, New York Area Command, Fort Hamilton, NY, dated 4 November 1987, shows she pled guilty before a judge sitting alone for:

* wrongful appropriation of property from 16 December 1986 to 4 June 1986, valued at $6,020.00 
* two specifications of unlawfully making a check on 30 November 1986 and 1 December 1986 (writing bad checks)

4.  On 25 August 1987, the military judge sentenced her to dismissal, forfeiture of all pay and allowances for 9 months and confinement for 9 months.  On 4 November 1987, the convening authority approved only so much of the sentence as provides for dismissal, forfeiture of 2/3 pay per month for 9 months, and confinement for 4 months, and except for the part of the sentence extending to the dismissal, ordered the sentence to be executed.

5.  On 16 December 1987, she was dismissed as a result of a GCM.  Her DD Form 214 issued at the time shows she completed 3 years, 3 months, and 15 days of total active service.  She had time lost from 7 September 1987 to     16 December 1987. Additionally, her DD Form 214 shows in:

	a.  item 24 (Characterization of Service) the entry "Under Other than Honorable Conditions";

	b.  item 25 (Separation Authority) the entry "No regulatory authority"; and

	c.  item 28 (Narrative Reason for Separation) the entry "Dismissal as a result of Court-Martial, other."

6.  GCM Order Number 36, issued by Department of the Army, Washington, DC, dated 6 September 1988, shows:

	a.  The U.S. Army Court of Military Review affirmed the findings of guilty, found the sentence correct in law and fact, and affirmed the sentence; and 

	b.  The Assistant Secretary of the Army, Manpower & Reserve Affairs approved the applicant’s sentence as affirmed by the U.S. Army Court of Military Review and ordered it executed.

7.  She provided the following documents as evidence of her post-service conduct:

* a State of North Carolina Criminal Record Search which shows no record of criminal actions was found
* a Cumberland County Sheriff's Office Wanted/Warrant Check, dated
27 April 2010, which shows she has no national or local warrants
* two State of Alaska, Department of Education and Early Development, Teacher Certificates 
* an undated newspaper article, titled "(applicant's name) pursues Urban League"

8.  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.

9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Paragraph 5-17 of the regulation states, in pertinent part, that an officer convicted and sentenced to dismissal as a result of general court-martial proceedings will be processed pending appellate review of such proceedings.

10.  Army Regulation 600-8-24 provides that an officer will normally receive an honorable characterization of service when the quality of the officer’s service has met the standards of acceptable conduct and performance of duty.  An office will normally receive a general (under honorable conditions) characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.
 
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a GCM and she received a dismissal.  Trial by GCM was warranted by the serious nature of the offenses for which she was charged and convicted.  The sentence is commensurate with the misconduct for which she was convicted.  As a result, clemency is not warranted in this case.

2.  Her post-service conduct is acknowledged; however, the ABCMR does not upgrade discharges based on the passage of time and post-service conduct alone. 

3.  The ABCMR does not grant requests for correction of records solely for the purpose of making the applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

4.  Additionally, the granting of VA benefits is not within the purview of the ABCMR; therefore, questions regarding eligibility for VA benefits should be addressed to the VA.

5.  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 record of service, the seriousness of the offenses for which she was convicted and which occurred over a period of time, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  

6.  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)                                         AR20100016730



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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