IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018425 


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 that her bad conduct discharge (BCD) be upgraded to a more favorable discharge.

2.  The applicant states that there was no injustice but she desires to have her discharge upgraded so that she can obtain a government job. She goes on to state that she got caught up in the wrong environment but now that she has gotten older she realized her mistakes.

3.  The applicant provides no additional documents with her application.

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 initially enlisted in the United States Army Reserve (USAR) in Milwaukee, Wisconsin on 23 April 1981 for a period of 6 years and training as a finance specialist.  She completed her training and served in the USAR until she was honorably discharged on 3 August 1982.

3.  On 4 August 1982 she enlisted in the Regular Army for a period of 4 years and assignment to Fort Polk, Louisiana.  She was assigned to Fort Polk as a pay specialist until she was transferred to Korea on 21 September 1983.  She was advanced to the pay grade of E-4 on 1 February 1984.  She completed her tour in Korea on 19 September 1984 and was transferred to Fort Sheridan, Illinois on 21 October 1984.

4.  The available records are silent as to the circumstances; however, her records show that she was reduced to the pay grade of E-3 on 15 January 1986.

5.  On 14 August 1986, after being held past her expiration of term of service (ETS) she was convicted pursuant to her plea by a special court-martial of the distribution of cocaine.  She was sentenced to a reduction to the pay grade of E-1 and a BCD.

6.  On 4 December 1986 the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

7.  On 17 April 1987 she he was discharged pursuant to a duly reviewed and affirmed court-martial conviction.  She had served 4 years, 8 months, and 14 days of active service during her current enlistment for a total of 5 years and 24 days of active service.

8.  There is no evidence in the available records to show that she applied to the Army Discharge Review Board (ADRB) for an upgrade of her discharge within that board’s 15-year statute of limitations.

9.  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.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

11.  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.  

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  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.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.

2.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to the seriousness of her offense.  Accordingly, her punishment was not disproportionate to the offense for which she was convicted and she has failed to show sufficient evidence or reasons to warrant an upgrade of her discharge based on clemency.  

3.  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 nature of the applicant's misconduct and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  Additionally, the Board does not upgrade discharges simply for the purpose of qualifying individuals for employment.  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)                                         AR20110018425





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ABCMR Record of Proceedings (cont)                                         AR20110018425



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