BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013027 


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 bad conduct discharge (BCD) be upgraded to a general discharge.

2.  The applicant states she has matured and she is a productive member of society.

3.  The applicant did not provide any 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, and 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.  Her military records show she enlisted in the Regular Army on 9 September 1983.  She completed training and was awarded military occupational specialty 71L (Administrative Specialist).  The highest rank/grade she attained while serving on active duty was specialist/E-4.

3.  On 5 August 1986, she departed her unit in an absent without leave (AWOL) status.  She returned to military control on 8 August 1986.

4.  On 27 August 1986, she again departed her unit in an AWOL status.  She was apprehended by civil authorities on 24 September 1986 and placed in confinement.  On 25 September 1986, she was returned to military control.  

5.  On 7 November 1986, she was convicted by a special court-martial of:

* two specifications of being AWOL from 5 August through 8 August 1986 and 27 August through 25 September 1986
* 11 specifications of "making checks on insufficient funds" on divers dates

6.  The court sentenced her to a BCD, confinement for 4 months with a credit of 43 days for pretrial confinement, a forfeiture of $426.00 pay for 4 months, and reduction to private/E-1.  On 10 December 1986, the convening authority approved the sentence, and except for the BCD, ordered the sentence executed. The record of trial was forwarded to the appellate authority for review.

7.  On 30 April 1987, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

8.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, Special Court-Martial Order Number 126, dated 21 August 1987, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 

9.  There is no evidence she petitioned the U.S. Court of Appeals for the Armed Forces for a review of her case.

10.  On 31 August 1987, she was discharged from active duty under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of court-martial, with the issuance of a BCD.  She was credited with completing 4 years, 2 months, and 12 days of net active service and she had 128 days of lost time.

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

12.  Army Regulation 635-200, paragraph 3-7b, states 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.

13.  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 evidence of record shows the applicant was convicted by a special court-martial of two specifications of being AWOL and 11 specifications of making checks on insufficient funds.  She was discharged on 31 August 1987 pursuant to the approved sentence of a special court-martial.

2.  Her trial by court-martial was warranted by the gravity of the offenses charged.  Her conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which she was convicted.

3.  She provided no evidence to show her discharge is unjust or a result of improper actions.  There is no error or injustice apparent in her record.  There is also no evidence that her court-martial conviction was unjust or inequitable.  She was properly discharged in accordance with pertinent regulations with due process and no violation of her rights.

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.  Absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  As a result, clemency is not warranted in this case.  In view of the circumstances in this case, she is not entitled to an upgrade of her BCD to a general discharge.

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)                                         AR20110013027



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ABCMR Record of Proceedings (cont)                                         AR20110013027



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