BOARD DATE:	  15 November 2012

		DOCKET NUMBER:  AR20120006693 


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 (BCD) so she can have a clean record from the military.

2.  She states, in effect, the following is a chronological account of the events that transpired during the time she was charged:

	a.  while she was serving in military occupational specialty 75C (Personnel Management Specialist) in the Levy Section at Fort Hood, TX, a Soldier asked if his orders could be amended or deleted.

	b.  she was told to retrieve his personnel records, which she did, but another specialist processed his orders.
 
	c.  about an hour later, a different Soldier asked where the soda machine was and she told him it had been gone for 6 months.
 
	d.  the military police arrived 20 minutes later and asked them (her and the specialist) to stand up and put their hands on the desk.  

	e.  she tried to explain to the Staff Judge Advocate that she never touched the money, but was falsely accused of accepting payment to amend or delete a Soldier’s orders as indicated by a blue substance on her desk. 



3.  She provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a self-authored statement  

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 1 November 1979.  

3.  Special Court-Martial (SPCM) Order Number 61, published by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 27 September 1982, shows she appeared before an SPCM for trial and pled:

	a.  not guilty, but was found guilty of one specification of violating Article 92 of the Uniform Code for Military Justice (UCMJ) by wrongfully accepting money in return for preparing orders sending Sergeant M----l T-----d to Fort Ord, CA.

	b.  guilty and was found guilty of one specification of violating Article 134 of the UCMJ by wrongfully and unlawfully receiving $300.00, between 18 and 26 February 1982, from SGT M----l T-----d to be split between herself and Specialist K----s L—d, as compensation for services rendered by her in relation to an official matter in which the U.S. was interested.

	c.  guilty and was found guilty of one specification of violating Article 81 of the UCMJ by conspiring to wrongfully accept money in return for preparing orders between 18 and 26 February 1982, sending SGT M----l T-----d to Fort Ord, CA.
      
4.  She was sentenced to be discharged from the service with a BCD.

5.  The sentence was adjudged on 20 May 1982.  

6.  SPCM Order Number 39, published by Headquarters, 1st Cavalry Division, Fort Hood, TX, dated 22 August 1983, shows the appropriate authority ordered the BCD to be duly executed.

7.  On 26 October 1983, she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 3, as a result of court-martial.  She completed a total of 3 years, 11 months, and 26 days of creditable active service.  

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Paragraph 3-11 of this regulation states that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

10.  Army Regulation 635-200, 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.  

12.  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 an upgrade of her BCD has been carefully considered and found to be without merit.

2.  The trial by court-martial was warranted by the gravity of the offenses charged.  She pled guilty to two of the charges.  Her conviction and discharge were effected in accordance with applicable law and regulations and the final discharge appropriately characterized the misconduct for which she was convicted.

3.  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 her criminal offense and absent sufficient mitigating factors, the type of discharge directed and the reasons therefore were appropriate.

4.  Her service record shows she was convicted by an SPCM.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, her record of service is insufficiently meritorious to warrant an honorable or 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)                                         AR20120006693





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ABCMR Record of Proceedings (cont)                                         AR20120006693



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