IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20120001851 


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, in effect, an upgrade of her Bad Conduct Discharge (BCD).   

2.  The applicant states her service was exemplary until she was sexually assaulted which caused her problems.

3.  The applicant provides no documentary evidence in support of her request.  

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's record shows she enlisted in the Regular Army on 2 January 1992, and was trained in and awarded military occupational specialty 88N (Traffic Management Coordinator).  Her record shows private first class/E-3 is the highest rank she attained while serving on active duty.  It also shows she earned the National Defense Service Medal, Army Service Ribbon, and Marksman Marksmanship Qualification Badge with Rifle Bar.  Her record documents no acts of valor or significant achievement.

3.  The applicant's record contains a Statement, dated 21 February 1995, in which she declined a separation medical examination.  Her record is void of any documents showing a sexual assault and there are no disabling physical or mental conditions noted in the available record.

4.  On 7 June 1994, a General Court-Martial (GCM) found the applicant guilty pursuant to her pleas of three specifications of violating Article 123a of the Uniform Code of Military Justice (UCMJ) by writing 55 worthless checks.  The resulting sentence was a BCD, confinement for 9 months, and reduction to private/E-1.

5.  GCM Order Number 21, Headquarters, 21st Theater Army Area Command, dated 28 July 1994, shows the sentence adjudged on 7 June 1994 was approved by the GCM convening authority.

6.  On 12 January 1995, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact and accordingly affirmed them.

7.  On 21 July 1995, Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, GCM Order Number 88 directed that, Article 71c having been complied with, that portion of the sentence pertaining to a BCD be duly executed.

8.  On 13 September 1995, the applicant was discharged by reason of court-martial with a BCD under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she completed a total of 2 years, 11 months, and 27 days of creditable active military service and she had accrued 250 days of lost time due to being in confinement.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 prescribes the policies and procedures for separating members with a dishonorable or BCD.  It stipulates that a Soldier would be given a BCD pursuant only to an approved sentence of a GCM or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

10.  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 contention that her BCD should be upgraded because her problems were related to a sexual assault has been carefully considered.  However, there is insufficient evidence to support this claim.  There is no evidence of record or independent evidence provided by the applicant supporting her assertion that her problems were related to a sexual assault.  This issue could/should have been raised during the court-martial and appellate process.

2.  By law, any redress by this Board of the finality of a court-martial conviction under the UCMJ 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.  The evidence of record reveals no error or injustice related to the applicant's court-martial and/or his subsequent discharge.

3.  Further, the record confirms the applicant declined a separation medical examination and there are no medical treatment records available showing she was suffering from a medical or mental condition that would have contributed to the misconduct that led to her court-martial action and BCD.  As a result, based on the gravity of the offense resulting in her court-martial conviction and BCD her overall record of service is not sufficiently meritorious to support clemency and/or an upgrade of her 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)                                         AR20120001851



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ABCMR Record of Proceedings (cont)                                         AR20120001851



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