IN THE CASE OF:	  

		BOARD DATE:	  8 November 2011

		DOCKET NUMBER:  AR20110009474 


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, her bad conduct discharge be upgraded. 

2.  The applicant states:

* The court-martial lacked jurisdiction
* The charges were multiplicious
* she wants to serve her country

3.  The applicant provides:

* U.S. Army Court of Criminal Appeals
* Correspondence from a Member of Congress

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 4 February 2000 for a period of 3 years.  She completed her training and was awarded military occupational specialty 92Y (unit supply specialist).  On 10 July 2002, she was honorably discharged for immediate reenlistment.  She reenlisted on 11 July 2002 for a period of 4 years. 

3.  On 21 May 2003, she was convicted by a general court-martial of conspiring to commit larceny, larceny and two specifications of identity theft.  She was sentenced to reduction to E-1, confinement for a period of 21 months, and to be separated from the service with a bad conduct discharge.  On 13 August 2003, the convening authority approved the sentence but suspended the confinement in excess of 12 months and 1 day for a period of 12 months and 1 day with provisions for automatic remission.

4.  She provided her petition to the U.S. Army Court of Criminal Appeals wherein she argued that the record contained insufficient documentation to demonstrate the appropriate exercise of general court-martial jurisdiction.  She argued that the court-martial did not have jurisdiction to try her and she requested that:

* The Court consolidate specifications 1 and 2 of charge III (identity theft)
* Set aside the findings of guilty of specification 2 of charge III
* Dismiss specification 2 of charge III
* Reassess the sentence
* her bad conduct discharge be disapproved

5.  The decision of the U.S. Army Court of Criminal Appeals is not available.  The U.S. Court of Appeals for the Armed Forces denied her petition for review on 
1 July 2005.  On 29 July 2005, the convening authority ordered the bad conduct discharge to be executed.

6.  On 19 December 2005, she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), chapter 3, as a result of a court-martial with a bad conduct discharge.  She had served 4 years, 10 months, and 15 days of creditable active service during this period of service with 366 days of time lost.

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

8.  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.

9.  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.

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.  Her contention she wasn't under the right general court-martial jurisdiction relates to legal matters that were addressed and conclusively adjudicated in the appellate process.  Although the decision of the U.S. Army Court of Criminal Appeals is not available, her bad conduct discharge was ordered executed on 
29 July 2005 after the U.S. Court of Appeals for the Armed Forces denied her petition for review.  

2.  Her record of service included one general court-martial conviction and 366 days of time lost.  As a result, her record of service was not satisfactory and she did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or a general discharge.

3.  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.

4.  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)                                         AR20110009474



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009474



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1