IN THE CASE OF:	  

		BOARD DATE:  8 May 2012

		DOCKET NUMBER:  AR20110021339 


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 upgrade of her bad conduct discharge (BCD).

2.  The applicant states her discharge is unjust.  She admits what she did was wrong but she has paid her debt to the military.  She contends that her civil and criminal records were clean and to this day, still are clean.  Now, she wants to grow old with pride.  She wants to be able to say "Honorable" when speaking of her discharge.  She regrets her past actions.  It took all of these years for her to realize the importance of a military discharge.  She wants to make hers right.  Also, her benefits are important to her.

3.  The applicant provides no additional documentation.

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.  On 24 January 1978, the applicant enlisted in the Regular Army (RA).  She completed her initial training and was awarded military occupational specialties 91B (Medical Specialist) and 91C (Clinical Specialist).

3.  On 1 October 1980, the applicant was promoted to specialist five (SP5)/E-5.

4.  On 28 February 1983, the applicant was honorably released from active duty and she was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete her remaining service obligation.  She completed
5 years, 1 month, and 5 days of creditable active service.

5.  On 14 October 1987, the applicant again enlisted in the RA.  She retained her MOS 91C and she was promoted to sergeant (SGT)/E-5 on 1 March 1990.

6.  Special Court-Martial Order Number 61, issued by Headquarters, Fort Campbell, Kentucky, dated 31 August 1990 (CORRECTED COPY) shows:

	a.  The applicant was convicted of violating:

* Article 81, Uniform Code of Military Justice (UCMJ) for conspiring to distribute marijuana
* Article 92, UCMJ, for wrongfully possessing and using drug paraphernalia
* Article 112a, UCMJ, for wrongfully possessing, distributing, conspiring to distribute, and using marijuana (multiple specifications).

	b  The sentence, adjudged on 30 July 1990, included:

* reduction to private (PV1)/E-1
* forfeiture of all pay and allowances
* confinement for 2 years
* dishonorable discharge

	c.  The convening authority withdrew the action taken by his predecessor and approved the sentence.  Except for that part extending to the sentence of a dishonorable discharge, the sentence was ordered to be executed.

7.  On 29 October 1991, the U.S. Army Court of Military Review (USACMR) provided in a Memorandum Opinion that:

	a.  The staff judge advocate recommended the convening authority approve the sentence as adjudged, including the dishonorable discharge.  In approving 


the adjudged sentence, the convening authority ordered that "except for the part of the sentence extending to the BCD will be executed."  However, General Court-Martial Order 61 which promulgated the initial convening authority's action, referred to a Dishonorable Discharge.  Ultimately, a successor convening authority withdrew the initial convening authority's action and approved the sentence as adjudged, including the dishonorable discharge.

	b.  The successor convening authority's action is of no force or effect because the order had been published.

	c.  The USACMR affirmed the finding of guilty.  Reassessing the sentence on the basis of error noted and the entire record, the court affirmed only so much of the sentence as provided for a BCD, confinement for 2 years, total forfeiture of pay and allowances, and reduction to PV1/E-1.

8.  General Court-Martial Order Number 184, issued by the U. S. Disciplinary Barracks, Fort Leavenworth, KS, dated 11 December 1992, affirmed the sentence as modified.  Article 71(c) having been complied with, the sentence was to be executed.

9.  On 24 December 1992, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, due to court-martial.  She received a BCD.

10.  Army Regulation 635-200 sets forth the basic policy governing the separation of enlisted personnel.

	a.  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.

	b.  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.

11.  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 that her BCD should be upgraded to an honorable discharge because her discharge is unjust.

2.  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 final discharge appropriately characterizes the misconduct for which the applicant was convicted.

3.  The applicant has not provided any documentary evidence to support her contention that her discharge was unjust.

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 seriousness of the applicant's criminal behavior, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no basis for upgrading the applicant's BCD to either an honorable or 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)                                         AR20110021339



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021339



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1