BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100016742 


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 has become a model citizen since her discharge.  She has two grown sons, one of whom is in college and the other is in the U.S. Air Force.  Additionally, she has earned a bachelor degree and is working towards her master degree.  She took full responsibility for her actions and has paid a heavy price over the years for those actions.  She has worked hard in order to repair her image and to put the past behind her.  

3.  The applicant provides five character reference letters or letters of support and seven certificates of achievement or appreciation.

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's records show she enlisted in the Regular Army on 17 May 1988 and held military occupational specialty 55B (Ammunition Specialist).  She also executed a 3-year reenlistment on 12 March 1991 and attained the rank/grade of specialist/E-4.  She was assigned to Fort Polk, LA.

3.  On 9 October 1992, she was convicted by a general court-martial of two specifications of unlawfully assaulting a child under the age of 16 on divers occasions between on or about 1 December 1991 and 13 February 1992.  The court sentenced her to confinement for 4 months and a bad conduct discharge.

4.  On 16 December 1992, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

5.  On 3 November 1993, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

6.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 90, dated 4 August 1994, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant’s bad conduct discharge sentence executed.

7.  She was discharged from the Army on 6 September 1994.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations) as a result of court-martial, with a bad conduct discharge.  This form further shows she completed a total of 6 years and 14 days of creditable military service and she had lost time from 9 October 1992 to 14 January 1993. 

8.  She submitted seven certificates of appreciation or achievement awarded during and/or subsequent to her military service.  She also submitted the following letters of support or character reference letters:

	a.  Self-authored statement wherein she states she was in a very unstable and abusive relationship at the time.  However, she accepted the consequences of her actions and has worked hard to improve the quality of her life. 

	b.  A statement from her son who states she went through counseling and therapy and has since improved her life. 

	c.  A character reference letter, dated 29 April 2010, from a retired Army member who describes her as a diligent worker and a thoughtful, considerate and helpful person.

	d.  A character reference letter from a friend who describes her as a determined, motivated, and productive member of the society.  She has raised two children and has continued to improve her life.

	e.  A statement, dated 29 April 2010, from a retired commissioned officer who describes her as an intelligent and proficient individual with excellent communications skills, perseverance, and initiative.

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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.

11.  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 contends that her bad conduct discharge should be upgraded.

2.  The evidence of record shows that the applicant’s trial by general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which he was convicted.  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.

3.  The applicant's post-service academic and social achievements as well as the character reference letters she submitted were carefully considered; however, they are not sufficiently mitigating to grant her the requested relief.

4.  After a review of the applicant’s entire record of service, it is clear that her service did not meet the criteria for a general or an honorable discharge.  As a result, there is insufficient basis to upgrade her discharge to either an honorable or a general discharge.

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)                                         AR20100016742



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ABCMR Record of Proceedings (cont)                                         AR20100016742



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