BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100018917
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 Article 15, Uniform Code of Military Justice (UCMJ), be expunged from the records of the Army Criminal Investigation Command (CID).
2. The applicant states that this record, which shows as a felony even though she committed no felony, is keeping her from getting a job. She left her civilian job in corrections for maternity leave and when she reapplied a background check revealed she had a Federal Bureau of Investigation record number as a felon because of the nonjudicial punishment (NJP). She maintains her discharge was upgraded to honorable by the Army Discharge Review Board (ADRB) because she was not charged with or convicted of a felony.
3. The applicant provides copies of her upgraded DD Form 214 (Certificate of Release or Discharge from Active Duty) and Honorable Discharge Certificate.
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 applicants 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 applicants 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 Regular Army on 25 November 2002 with prior service. She completed training, progressed normally, and was promoted to sergeant/E-5 on 1 January 2005.
3. A 31 August 2005 Article 15 reduced the applicant to specialist/E-4 for violating a lawful general regulation by having inappropriate sexual relations with a specialist and for making a false official statement by denying it.
4. The CID file in question deals with larceny and the use of government credit cards. The applicant made a sworn statement to the effect that she knew it was a stolen government credit card, but she used the card anyway. The applicant received NJP for larceny. The NJP included reduction to pay grade E-1, forfeiture of pay, and extra duty.
5. The applicant was properly processed for administrative separation with a general discharge due to a pattern of misconduct. The separation package mentions a 9 December 2005 NJP for larceny that is not otherwise contained in the available records. The applicant was separated with a general discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct.
6. On 18 March 2008 at a personal appearance hearing, the ADRB concluded that the length and quality of her service was such that it mitigated the discrediting entries in her record. As such, it determined the characterization of service was too harsh and therefore inequitable. The characterization was upgraded to fully honorable; however, the ADRB determined the reason for discharge was both proper and equitable.
7. The commonly accepted definition of felony is that it is a serious crime for which the traditional punishment is prison for more than 1 year.
8. The Manual for Courts-Martial Table of Maximum Punishments shows that 2 years of confinement is authorized for violation of a lawful general regulation, 3 years for false swearing, and 1 year for larceny of non-military government property.
DISCUSSION AND CONCLUSIONS:
1. The applicant states this CID record which shows as a felony even though she committed no felony is keeping her from getting a civilian job. She maintains her discharge was upgraded to honorable by the ADRB because she did not commit a felony.
2. The applicant's discharge was not upgraded because she committed no felony. It was upgraded because it was considered too harsh compared to her overall record of service.
3. During her military career the applicant committed more than one felony-level offense. She violated a lawful general regulation and then swore to a false statement about it. She also committed larceny by using a stolen government credit card. Notwithstanding the relatively minor punishments she received for those offenses or the upgrade to an honorable discharge, the CID record serves an appropriate purpose of maintaining a record of this fact.
4. There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.
5. 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 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) AR20100018917
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ABCMR Record of Proceedings (cont) AR20100018917
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