IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110003697 


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 her dishonorable discharge be upgraded to a bad conduct discharge. 

2.  The applicant states:

	a.  in General Court-Martial Order Number 50 the convening authority's action states "except for the dishonorable discharge, will be executed."  She contends the sentence and wording of the events were changed after the appellate review.  She believes a bad conduct discharge is in order.

	b.  on 28 November 1987, she and another Soldier took an intoxicated female Soldier (the victim) back to the barracks from the Noncommissioned Officers' (NCO) Club because she was concerned about her safety.  On the way to the barracks, the applicant was stopped by the German police for driving at a high rate of speed while the victim's car door was open.  The applicant also alleges the police struck the victim with a night stick and advised her to stay in the car.  As they continued to travel to the barracks the victim pulled out a knife and began waving it around.  The applicant stopped the car and during the struggle to wrestle the knife away from the victim, the victim bit the applicant on the thigh and the applicant hit the victim with a shoe.  The applicant claims the victim did not hit her head on the car and there was no wrench-like instrument of any kind for her to be hit with as the record incorrectly indicated.  The applicant claims she walked the victim to her barracks and left.  


	c.  she believes the court-martial was too severe based on the incidents that occurred.  She has seen other military cases where fighting was handled by nonjudicial punishment and a loss of pay.  She was not trying to inflict bodily harm or hold the victim against her will to do harm.  

   d.  she contends she pled self-defense with respect to the victim having a knife and using her teeth, causing her bodily harm.  She did not strike the victim until she sank her teeth into her inner thigh.  She just wanted the victim to let go of her leg.  She did not kidnap the victim and she was not trying to pull rank on the victim.  The incidents were not carefully explored as to why or what happened.  She had never been in trouble before or since this incident.  She was simply protecting herself.  She paid her debt to the military.       

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Enlistment contracts
* General court-martial documentation
* Service personnel records to include medical records
* Police record check
* Character reference letters  

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 19 January 1982.  She completed her training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).  She remained on active duty through continuous reenlistments.  She was promoted to sergeant on 1 June 1986.



3.  On 8 April 1988, she was convicted by a general court-martial of assaulting another Soldier with a means likely to inflict grievous bodily harm (to wit: a wrench-like object and a shoe) and kidnapping a female specialist.  She was sentenced to confinement for 36 months, reduction to E-1, a forfeiture of all pay and allowances, and the issuance of a dishonorable discharge.  The convening authority's action, dated 25 August 1988, states "The sentence is approved and, except for the dishonorable discharge, will be executed."

4.  On 15 September 1989, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The U.S. Court of Military Appeals denied her petition for review on 15 December 1989.

5.  On 5 February 1990, the convening authority ordered the dishonorable discharge to be executed.

6.  On 2 March 1990, the applicant was discharged under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), as a result of court-martial with a dishonorable discharge.  She had served 6 years and 5 months of creditable active service with lost time from 8 April 1988 to 2 March 1990.  

7.  She provided numerous character reference letters from members of her church, a fellow Soldier, and friends who attest that she:

* displays a high degree of integrity, responsibility, and ambition
* is a leader rather than a follower
* is a dedicated worker
* is honest and kind hearted

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

9.  Army Regulation 635-200, paragraph 3-11, provides 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.  

10.  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 the convening authority's action ("except for the dishonorable discharge, will be executed"), dated 25 August 1988, appears to be a contradiction which means she should not have received a dishonorable discharge.  However, the language she refers to is standard language in all court-martial orders.  There is no discrepancy between the initial and final action.  The convening authority is prohibited from ordering a punitive discharge, dishonorable discharge, or bad conduct discharge into execution until after final judgment has been rendered in the case.  Simply put, the punitive discharge cannot be ordered executed until all appeals have been exhausted and the conviction is final.  In the applicant's case, her appellate review was not complete until 15 December 1989 and her dishonorable discharge was ordered executed on 5 February 1990.    

2.  Her contentions that she did not kidnap the victim, she was not trying to pull rank, and that she pled self-defense relate to evidentiary and legal matters that should have been addressed and conclusively adjudicated in the court-martial process.

3.  The character reference letters submitted on behalf of the applicant are laudable; however, they fail to show her discharge was unjust and should be upgraded.

4.  Trial by court-martial was warranted by the gravity of the offenses charged.  The 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.

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)                                         AR20110003697



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003697



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1