IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110013636

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:

* correction of item 23 (Type of Separation) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show discharge versus dismissal
* upgrade of her characterization of service, from an under other than honorable conditions discharge to an honorable discharge
* upgrade of her separation code, from JJD to JDB
* upgrade of her narrative reason for separation, from court-martial to retirement

2.  The applicant states:

* her discharge was based on a singular negative incident in a career that spanned 240 months
* she held numerous positions of authority and responsibility throughout her career, in which she excelled
* her decision to leave the Army was based on her doctors' guidance; however, she did not realize her decision would lead to her trial by court-martial
* her chain of command was inconsistent in its application of policy – she was ordered to deploy while others were granted an exemption
* her chain of command interfered with her ability to receive a proper medical diagnosis of her issues
* she attempted to resolve her issues with her chain of command
* she accepts responsibility for what happened and has paid the price for her past actions

3.  The applicant provides:

* DD Form 214
* 12 pages of medical documentation submitted to establish her medical history prior to her dismissal
* 8 character/reference letters
* memorandum, U.S. Army Medical Department Activity, Fort Stewart, GA, dated 17 October 2007, subject: Letter of Intent (LOI) for Medical Board Processing
* personnel roster
* 2 DA Forms 67-9 (Officer Evaluation Report)
* 3 Noncommissioned Officer (NCO) Evaluation Reports (DA Form 2166-7 and DA Forms 2166-8)
* 3 DA Forms 3349 (Physical Profile)
* 5 medical documents concerning her referral to a civilian provider for an issue with her right eye
* IRT Registration Form
* DA Form 1559-R (Inspector General Action Request)
* 3 pages of correspondence with her Member of Congress
* "Wheels Up/Wheels Down" Report
* DA Form 4856-R (Developmental Counseling Form)
* DD Form 2766C (Vaccine Administration Record)
* 2 information sheets related to her prescribed medications
* 3 DA Forms 638 (Recommendation for Award)
* DA Form 4980-14 (Army Commendation Medal Certificate)
* DA Form 4980-18 (Army Achievement Medal Certificate)
* email dated 21 August 2007, subject: Upcoming Appointments for [applicant]
* extract of information paper, subject: White-Rot Fungi Biodegradation of Pentachlorophenol (PCP)-Treated Ammunition Boxes
* extract of internet encyclopedia article, subject: Depleted Uranium
* State of Georgia, Department of Driver Services, Motor Vehicle Report
* 2 letters from utility providers in the State of Georgia
* an extract of Army Enlisted Military Occupational Specialty (MOS) Exhibits
* an extract from the Western University of Health Sciences website, subject: About the Department of Physician Assistant Education
* memorandum, Headquarters, 2nd Infantry Division, dated 22 September 2005, subject: Aviation Accident Investigation Board
* DA Form 873 (Certificate of Clearance and/or Security Determination)
4.  Item 9 (In Support of this Application, I Submit…) of her DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) indicates she submitted a legal brief and counsel submissions; however, these documents were not contained within her supporting documentation. 

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service as follows:

   a. She enlisted in the Regular Army (RA) on 20 April 1989.  She served on active duty until she was separated on 26 August 1992.  Her DD Form 214 is unavailable for review.  

   b. On 2 March 1994, she again enlisted in the RA and remained on active duty until she was separated on 22 April 1998.  Her DD Form 214 shows she completed 4 years, 1 month, and 21 days of net active service during this period of active duty, and she had completed 3 years, 4 months, and 5 days of prior active service prior to the beginning of this period of active duty.  

   c. On 2 September 1999, she again enlisted in the RA and remained on active duty until she was separated on 19 January 2005.  Her DD Form 214 shows she completed 5 years, 4 month, and 18 days of net active service during this period of active duty, and she had completed 7 years, 5 months, and 27 days of prior active service prior to the beginning of this period of active duty.

2.  On 20 January 2005, she was appointed as a Reserve Warrant Officer of the Army, in the rank/grade of warrant officer 1/W-1 and entered active duty.  On 
21 April 2005, she completed the Warrant Officer Basic Course and was awarded MOS 890A (Ammunition Warrant Officer).  On 20 January 2007, she was promoted to chief warrant officer 2 (CW2).  

3.  At a General Court-Martial (GCM) at Hunter Army Airfield, GA, she pled not guilty to:

* a single specification of Charge I, violating Article 87 of the Uniform Code of Military Justice (UCMJ), for missing movement on 26 August 2007
* a single specification of Charge II, violating Article 92 of the UCMJ, for failing to obey a lawful order on 26 August 2007 

4.  On 2 April 2008, the court found her guilty of the charges and sentenced her to confinement for 5 months and dismissal from the Army.  On 6 October 2008, the convening authority approved the sentence and, except for that part of the sentence extending to her dismissal from the Army, ordered it executed.

5.  On 23 January 2009, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

6.  On 13 February 2009, the applicant, following notice of the Court's decision, requested that action be taken to finalize the affirmed sentence without further delay.

7.  On 29 April 2009, by General Court-Martial Order Number 15, Headquarters, Department of the Army (HQDA), Washington, DC, dated 21 May 2009, the Assistant Secretary of the Army for Manpower and Reserve Affairs approved the sentence of dismissal and ordered it executed.

8.  HQDA General Court-Martial Order Number 15 further shows that, after completion of all required post-trial and appellate reviews, by order of the Secretary of the Army, the Chief of Staff, Army, ordered that the applicant "ceases to be a member of the U.S. Army at midnight on 5 June 2009."

9.  On 5 June 2009, she was dismissed as a result of her GCM.  Her DD Form 214 issued at the time shows she completed 4 years and 15 days of net active service during this period of active duty.  Additionally, her DD Form 214 shows in:

* Item 23 the entry "Dismissal Or Discharge As Appropriate"
* Item 24 (Characterization of Service) the entry "Under Other Than Honorable Conditions"
* Item 25 (Separation Authority) the entry "AR 600-8-24, para 5-17"
* Item 26 (Separation Code) the entry "JJD"
* Item 28 (Narrative Reason for Separation) the entry "Court Martial"

10.  She provided numerous documents as evidence, including multiple medical documents, through which she contends her medical conditions made her unfit to deploy.  Neither the document provided, nor those contained within her available record, establish the presence of medical conditions of such severity that would have rendered her unable to perform her normal assigned duties. 
 
11.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  

   a. Paragraph 1-21a provides that 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.  

   b. Paragraph 1-21b provides that an officer will normally receive an Under Honorable Conditions characterization of service when the officer's military record is satisfactory, but not sufficiently meritorious, to warrant an honorable discharge.

   c. Paragraph 5-17 provides that an officer convicted and sentenced to dismissal, as a result of general court-martial proceedings, will be processed pending appellate review of such proceedings.

   d. Paragraph 6-14 provides that any warrant officer with 20 years of accrued active Federal service (AFS) may, upon his or her request and the approval of the Secretary of the Army, be retired.

12.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The version of the regulation in effect at the time confirms the SPD code JJD was the appropriate code to assign officers separated by reason of Service initiated discharge or dismissal as a result of court martial conviction.

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 applicant's request for correction of her DD Form 214 and upgrade of her characterization of service, separation code, and narrative reason for separation have been noted; however, there is insufficient evidence to support her request. 

2.  The evidence of record shows the applicant was court-martialed for missing movement (failure to deploy) and for failing to obey a lawful order.  

3.  By law, 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.  

4.  The evidence of record shows the applicant was convicted by a GCM, for which she was dismissed from the Army.  Trial by GCM was warranted by the serious nature of the offenses for which she was charged and convicted.  The sentence is commensurate with the misconduct for which she was convicted.   As a result, clemency is not warranted in this case.

5.  The applicant contends her medical conditions made her unfit to deploy; however, there is no indication that the offense for which she was court-martialed was caused by a medical condition.  In any case, her medical conditions would have been considered during her court-martial proceedings. 

6.  The applicant contends she should have been retired instead of being dismissed.  Army Regulation 600-8-24, the governing regulation for warrant officer retirements, states that any warrant officer with 20 years of accrued AFS may, upon his or her request and the approval of the Secretary of the Army, be retired.  The evidence of record shows she completed approximately 17 years of AFS; therefore, she did not meet the criteria for retirement. 

7.  Given the applicant's record of service, the seriousness of the offenses for which she was convicted, and absent any mitigating factors, the type of discharge directed and the reasons were appropriate.  

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110013636



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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