IN THE CASE OF:	  

		BOARD DATE:	    12 July 2011

		DOCKET NUMBER:  AR20100029556 


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 an honorable discharge.

2.  The applicant states she had a very bad experience that caused her to do the wrong things.  She states she has overcome that condition as noted by the strong letters of recommendation she provides.

3.  The applicant provides:

* her DD Form 214 (Report of Separation from Active Duty)
* three letters of support

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 enlisted in the Regular Army on 27 March 1972.  She completed basic and advanced individual training and she was awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade she attained was specialist four (SP4)/E-4.

3.  Records show the applicant was reported absent without leave (AWOL) on
13 October 1972 and she was dropped from rolls of her organization as a deserter on 11 November 1972.

4.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant surrendered to military authorities at Fort Sheridan, IL on 4 January 1973.

5.  Her record is absent the disciplinary action imposed, if any, for this period of AWOL.  She was subsequently reassigned to Fort Hood, TX.

6.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 11 January 1974, for being AWOL during the period 10 through 12 December 1973 and for being absent from duty on 2 January 1974
* 14 February 1974, for being absent from duty during the period 0730-1400 hours on 4 February 1974 and 1000-1245 hours on 5 February 1974
* 26 March 1974, for being AWOL during the period 1 to 4 March 1974

7.  On 29 May 1974, a special court-martial found the applicant guilty of:

* violation of Article 128, UCMJ, for unlawfully striking a Soldier
* violation of Article 134, UCMJ, for two specifications of wrongfully communicating a threat
* violation of Article 95, UCMJ, for breaking arrest

8.  Special Court Martial Order Number 25, issued by Headquarters, III Corps, Fort Hood, dated 1 July 1974, shows on 29 May 1974 she was sentenced to discharge from the service with a bad conduct discharge, forfeiture of $100.00 per month for 3 months, and confinement at hard labor for 3 months.


9.  On 1 July 1974, the court-martial convening authority approved the sentence.  The service of the sentence to confinement at hard labor for 3 months and forfeiture was deferred on 20 June 1974, and would not begin until such time as the sentence was ordered into execution.

10. On 11 June 1975, the U.S. Court of Military Appeals denied the Petition for Grant of Review of the decision of the Court of Military Review.

11.  Special Court-Martial Order Number 43, issued by Headquarters, III Corps, Fort Hood, dated 1 July 1975, shows the unexecuted portion of the applicant's sentence to confinement at hard labor for 3 months was remitted and that the deferred forfeiture was ordered into execution.  Additionally, Article 71(c) having been complied with, the sentence to a bad conduct discharge would be duly executed.

12.  On 4 January 1977, the applicant was accordingly discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 11, by reason of court-martial.

13.  The DD Form 214 she was issued at the time shows she completed 4 years, 9 months, and 4 days of total active service with 5 days of time lost and 749 days of excess leave from 20 June 1974 through 4 January 1977.  The applicant was issued a Bad Conduct Discharge Certificate.

14.  The applicant provided three letters of support.  The letters essentially state the applicant possesses good character and she is an advocate for fairness.  Additionally, she is deeply rooted in her community and she possesses great leadership ability.

15.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 11, in effect at the time, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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.  

19.  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 request that her character of service be upgraded to honorable because she had a very bad experience that caused her to do the wrong things was carefully considered; however, there is insufficient evidence to support her request.

2.  The evidence shows the applicant received nonjudicial punishment on three occasions for being absent from her unit or place of duty without authority.  Records further show she received a court-martial for unlawfully striking a Soldier, wrongfully communicating a threat to kill another Soldier, and breaking arrest.

3.  The evidence shows the applicant was found guilty by a special court-martial and sentenced to be discharged from the service with a bad conduct discharge.

4.  Based on her record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to either an honorable or a general discharge.

5.  The applicant's post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

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 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)                                         AR20100029556



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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