IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20100028870 


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, in effect, that the character of her service be upgraded.

2.  The applicant states her discharge was too harsh.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and eight third-party letters of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, acting as the applicant's counsel, requests to be appropriately informed of all actions taken in this case.

2.  Counsel provides no additional evidence.

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 was appointed as a Reserve commissioned officer in the rank of second lieutenant on 23 May 1984 and entered active duty on 10 March 1985. She was promoted to captain on 1 July 1989.

3.  On 1 February 1990, she pled guilty before a general court-martial of one specification of dereliction of duty by culpable inefficiency and one specification of wrongful use of cocaine.  The sentence consisted of a forfeiture of all pay and allowances and dismissal from the service.

4.  On 15 February 1990, she was placed on excess leave pending appellate review of her sentence.

5.  On 20 March 1990, the convening authority approved the sentence and, except for that part of the sentence extending to a dismissal, the sentence was ordered executed.

6.  Headquarters, Department of the Army, General Court-Martial Order Number 24, dated 8 July 1991, shows the U.S. Army Court of Military Review affirmed the findings of guilty on 3 October 1990 and only so much of the sentence that provided for dismissal and a forfeiture of $1,600.00 pay per month until the dismissal was executed.  This order also shows the U.S. Court of Military Appeals denied her petition for grant of review on 27 December 1990 and that her dismissal from the Army was to be effective 22 July 1991.

7.  On 22 July 1991, she was separated accordingly.  Her DD Form 214 shows the narrative reason for separation as "dismissal, no review" and the character of service as under other than honorable conditions.

8.  The Army Discharge Review Board denied her request for an upgrade of the character of her service on 18 October 2002.

9.  She provided eight third-party letters that attest to her character and post-service accomplishments and strongly support the upgrade of her discharge.

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 
1-22a, states 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.  

11.  Army Regulation 600-8-24, paragraph 1-22b, states an officer 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.

12.  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 contention that her discharge should be upgraded because it was too harsh has been carefully considered.

2.  Trial by 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 characterizes the misconduct for which the applicant was convicted.

3.  Her record of indiscipline includes dereliction of duty by culpable inefficiency and wrongful use of cocaine.  Based on this record of indiscipline, her service clearly did not meet the standards of acceptable conduct for Army personnel.  This record of misconduct also rendered her service unsatisfactory.  Therefore, she is not entitled to either a general or an honorable discharge.

4.  The third-party letters and her post-service accomplishments were noted; however, they failed to show her discharge processing was in error or the character of service received was unjust.

5.  In view of the foregoing, there is no basis for granting the 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)                                         AR20100028870



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ABCMR Record of Proceedings (cont)                                         AR20100028870



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