IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120001582 


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 an upgrade of her bad conduct discharge to an honorable discharge.

2.  The applicant states she was a model Soldier.  However, she experienced prejudice at the time.  She also had hypertension that still exists to this day.  She needs medical benefits.

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, 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 7 July 1983 and she held military occupational specialty 76Y (Unit Supply Specialist).  She also executed a reenlistment on 7 July 1983 and she served in Germany from July 1984 to July 1985.

3.  She was awarded the Army Good Conduct Medal, Noncommissioned Officer Professional Development Ribbon, Army Achievement Medal, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  On 24 July 1985, she was convicted by a special court-martial of one specification of missing unit movement on 29 April 1985 and one specification of making a false official statement on 5 April 1985 that she was placed on quarters. The Court sentenced her to a reduction to private (PV1)/E-1, forfeiture of $100.00 pay per month for 6 months, confinement for 6 months, and a bad conduct discharge.

5.  On 19 September 1985, the convening authority approved the sentence, and except for the bad conduct discharge, the sentence was ordered executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  On 22 January 1986, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

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

8.  Special Court-Martial Order Number 104, issued by Headquarters, U.S. Army Correctional Facility, Fort Riley, KS, dated 20 May 1986, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge executed.

9.  The applicant was discharged from the Army on 30 May 1986 with a bad conduct discharge.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 5 years, 4 months, and 17 days of creditable active service with time lost from 24 July to 15 December 1985.

10.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of her discharge within that board's 15-year statute of limitations. 

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.

12.  Army Regulation 635-200 (Personnel Separations) provides in:

	a.  Paragraph 3-7a 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 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.  The applicant was convicted by a special court-martial that was warranted by the gravity of the offenses charged at the time.  Her conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which she was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  She was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and her rights were fully protected.  The fact that she believes she was a model Soldier or that she now needs medical benefits does not negate the fact that she was convicted by a special court-martial that warranted a bad conduct discharge.

3.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120001582



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ABCMR Record of Proceedings (cont)                                         AR20120001582



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