IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100024632 


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 bad conduct discharge to a general discharge.  

2.  She states she didn’t do anything [wrong] and she was working at the U.S. Army Communications Command at the time.  She feels it was a misjudgment on their part and she can prove they were wrong. 

3.  She provides a copy of her DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 completed prior service in the Army National Guard from 9 February 1977 to 16 January 1979.  She enlisted in the Regular Army on 22 February 1979.

3.  On 22 December 1983, she was convicted, contrary to her pleas, by a special court-martial of wrongful possession and distribution of one-half gram of methamphetamine on 20 September 1983 and wrongful possession and distribution of one-fourth gram of methamphetamine on 21 September 1983.  She was sentenced to reduction to the grade of E-1, forfeiture of $382.00 pay per month for 2 months, and to be discharged from the service with a bad conduct discharge.  

4.  On 8 February 1984, the court-martial convening authority approved the sentence.  The record of trial was forwarded to The Judge Advocate General of the Army for review by a Court of Military Review and she was confined in the Area Confinement Facility, Fort Ord, CA, or elsewhere as competent authority could direct.  

5.  On 27 March 1985, the U. S. Army Court of Military Review set aside and dismissed the findings of guilty of Specifications 1 and 3 (wrongful possession of methamphetamine) of the Charge.  The remaining findings of guilty and the approved sentence were affirmed.  

6.  The bad conduct discharge was ordered to be executed on 18 October 1985.

7.  She was discharged on 30 October 1985 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, as a result of court-martial.  She completed 2 years, 6 months, and
20 days of creditable active service with 49 days of time lost during the period under review.

8.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

   b.  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.

9.  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 she didn’t do anything wrong; however, her service record doesn’t support her claim.

2.  Her service record shows she was convicted by a special court-martial of wrongful possession and distribution of methamphetamine.

3.  Based on the seriousness of the misconduct for which she was convicted her service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  Therefore, there is no basis for granting her requested relief.

5.  The trial by court-martial was warranted by the gravity of the offense charged.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which she was convicted.

6.  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 undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.


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)                                         AR20100024632



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ABCMR Record of Proceedings (cont)                                         AR20100024632



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