IN THE CASE OF:	  

		BOARD DATE:	  23 October 2012

		DOCKET NUMBER:  AR20120007462 


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 honorable or general under honorable conditions.

2.  The applicant states:

	a.  She was sexually assaulted and raped by a fellow Soldier when he was drunk and she was trying to help him while she was stationed at Aberdeen Proving Ground, MD, for advanced individual training.  She did tell a friend, but only after she heard a rumor that the same Soldier raped someone else.  She was afraid to tell anyone else because she had enough problems.  After she told a friend of the Soldier who raped her, she was threatened so she stayed away from both of them.

	b.  She knows she made mistakes and tried to rectify them, but she can't erase the fact that her actions were due to the trauma she experienced that she didn't ask for but needed help with.  However, she was refused help, scandalized, and ignored.

	c.  She joined the military because it was always something she wanted to do.  Her father served two tours of duty in Vietnam and she was very proud of him.  If none of this had transpired, she would have made the Army a career.  Instead, it turned into a non-ending nightmare for her.  No one ever told her she would be raped, taunted, and then subjected to more humiliation in her unit.  She thought she was making a good decision, but it went wrong.

	d.  Her husband, a newly-disabled veteran, never told her about rapes and what to do.  She exited the service only to be emotionally raped by him as well.  She got out and was turned out to suffer affliction.  It wasn't until she became homeless that she was finally able to get the help she needed.  She asks that her request for an upgrade be granted so she will have access to her military benefits, receive care, and continue with her outpatient therapy and recovery.

3.  The applicant provides:

* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* two letters, dated 12 March 2007 and 5 January 2012 
* a statement of support, dated 1 February 2012
* two court-martial orders
* seven certificates
* J&C Truck Driving School, Incorporated, transcript, undated
* Arnold Transportation Service Safety Awards for August/September 2007

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 records show she enlisted in the Regular Army on 11 May 1994 and she held military occupational specialty 52C (Utilities Equipment Repairer).

3.  On 25 December 1994, she was assigned to the 226th Medical Battalion, Germany.

4.  On 12 February 1996, she was convicted by a general court-martial of:

* one specification of larceny of private property valued at $2,937.47 between 14 June and 7 July 1995
* one specification of falsely signing credit card charge slips with intent to defraud for a total value of $2,937.47 between 14 June to 7 July 1995
* three specifications each of wrongfully stealing a letter containing a credit card between 15 May and 14 June 1995

5.  She was sentenced to confinement for 13 months, forfeiture of all pay and allowances, reduction to private/E-1, and a bad conduct discharge.

6.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, OK, General Court-Martial Order Number 89, dated 1 May 1997, shows that the applicant's sentence having been affirmed and complied with, the convening authority ordered her bad conduct discharge executed.

7.  On 16 May 1997, she was discharged from the Army.  Her DD Form 214 shows she was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 3, with a bad conduct character of service.  She completed 1 year, 11 months, and 20 days of creditable active service with 376 days of time lost due to confinement.

8.  The applicant provides a statement from the Department of Veterans Affairs (VA) Vet Center, Maple Heights, OH, dated 5 January 2012, wherein a VA official stated the applicant had been diagnosed with post-traumatic stress disorder and was currently in treatment at the Vet Center.  Prior to the rape, the applicant had no history of bad conduct.  It was common for individuals who experienced a sexual assault to begin having disciplinary problems.  Since the rape, she had a difficult time dealing with authority, intimacy, intrusive thoughts, anxiety, depression, anger, and nightmares.

9.  The applicant also provides a statement of support, dated 1 February 2012, wherein an individual stated the applicant had been a resident of the Westside Catholic Center, Cleveland, OH, since 3 June 2011.  The applicant demonstrated a strong work ethic and a strong willingness to become self sufficient.  In addition, she was a very motivated, trustworthy, and honest person.

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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  Her conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and her discharge appropriately characterized the misconduct for which she was convicted.  She could have raised her past sexual trauma as an issue to be considered in mitigation during the court-martial or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Notwithstanding the applicant's assertion that she was sexually assaulted while serving on active duty and that her actions were due to the trauma she experienced, the evidence of record does not show and she hasn't provided any evidence that shows she sought help/treatment for any trauma or problems she may have experienced while serving on active duty.  Although she may have been dealing with traumatic personal issues, it does not justify or mitigate the actions she took that resulted in her court-martial conviction for stealing three credit cards and larceny of almost $3,000.00 in private property.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.
5.  After a review of her record of service, it is clear that her service did not meet the criteria for an honorable or a general discharge or any character of service other than the one she received.  Therefore, she is not entitled to the requested relief.

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 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)                                         AR20120007462



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ABCMR Record of Proceedings (cont)                                         AR20120007462



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