IN THE CASE OF:	  

		BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120021945 


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 a general discharge.

2.  The applicant states she was young and made several foolish mistakes at that time.  She believes the court’s judgment was rather harsh.  She has become a model citizen.  She is active in her church and community.

3.  The applicant provides numerous certificates of achievement and recognition. 

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 4 December 1972, at age 21, the applicant enlisted in the Women's Army Corps.  She was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  The highest rank/grade she held was specialist four (SP4)/E-4.

3.  On 16 April 1973, she accepted nonjudicial punishment (NJP) for being absent from her unit from 7-12 April 1973.

4.  On 7 February 1974, she was officially reprimanded for striking another Soldier in the abdomen with her fist.

5.  On 20 May 1974, she accepted NJP for remaining in her quarters from 
10-15 May 1974 feigning illness for the purpose of avoiding duty.

6.  Special Court-Martial Order Number 2, Headquarters, Special Troops, Fort Richardson, AK, shows that on 30 April 1975:

	a.  The applicant was arraigned and tried for:

* committing assault upon Specialist Five (SP5) SDT by cutting her on the chest and abdomen with a table knife
* assaulting the above Soldier by brandishing a baseball bat at her
* feigning excessive pain due to dental work by altering a DD Form 689 (Individual Sick Slip) to show quarters as well as light duty for the purpose of avoiding her duty as a stock control accounting clerk

	b.  Pursuant to her pleas, she was convicted of:

* assaulting SP5 SDT by striking her with her fist
* assaulting the above Soldier by brandishing a baseball bat at her, which was a means likely to produce grievous bodily harm
	
	c.  The court sentenced her to a forfeiture of $100 pay for 3 months and reduction to pay grade E-3.  On 19 May 1975, the sentence was approved and ordered duly executed.

7.  Special Court-Martial Order Number 47, Headquarters, 172nd Infantry Brigade (Alaska), shows that on 9 October 1975:
 
	a.  The applicant was arraigned and tried for:

* wrongfully having in her possession some amount of marijuana
* unlawfully entering the assigned room of SP4 EG
* willfully damaging military clothing
* willfully and wrongfully damaging military clothing of SP4 EG
* failing to obey a lawful general regulation by having in her possession a "Nunchaka"
* hitting Private AT (a military policewoman in the execution of her duties) in the mouth 
* attempting to escape from the lawful custody of Private AT, a military policewoman

	b.  Pursuant to her pleas, she was convicted of:

* unlawfully entering the assigned room of SP4 EG
* willfully damaging military clothing by placing ketchup and hot cocoa mix on the clothes
* unlawfully striking Private AT with her hand 
* attempting to escape from the lawful custody of Private AT

	c.  The court sentenced her to a forfeiture of $240 pay for 4 months, confinement at hard labor for 3 months, reduction to pay grade E-1, and to a bad conduct discharge.  (Her previous conviction was considered).  On 3 December 1975, the sentence was approved.

8.  Special Court-Martial Order Number 20, Headquarters, 7th Infantry Division and Fort Ord, dated 22 December 1975, remitted the unexecuted portion of the sentence to confinement at hard labor for 3 months.

9.  On 2 April 1976, the U.S. Army Court of Military Review affirmed the court-martial's findings and the sentence.

10.  On 8 July 1976, the U.S. Court of Military Appeals denied the applicant's petition for review. 

11.  Special Court-Martial Order Number 54, Headquarters, 7th Infantry Division, Fort Ord, dated 21 July 1976, shows the sentence to a bad conduct discharge, a forfeiture of $240 pay for 4 months (forfeitures to apply to pay becoming due on or after the date of the convening authority's action), and reduction to the grade of private/E-1, adjudged on 9 October 1975, as promulgated in Special Court-Martial Order Number 47 was affirmed pursuant to Article 66.  Pursuant to Special Court-Martial Order Number 20, the unexecuted portion of the sentence to confinement at hard labor was remitted.  It shows the appellate review was completed and the sentence, as thus modified, was ordered executed.


12.  Accordingly, on 28 July 1976, the applicant was discharged under other than honorable conditions with a Bad Conduct Discharge Certificate.  The DD Form 214 she was issued shows she completed 3 years, 7 months, and 4 days of active service for this period.  This form shows she had 189 days of time lost.

13.  She provides numerous certificates of recognition and appreciation from a variety of organizations.

14.  Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic policy for the separation of enlisted personnel.

	a.  Chapter 11 provided that a Soldier would be given a bad conduct discharge 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.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

15.  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 age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their service obligation and received honorable discharges.  Therefore, the applicant's age is not sufficiently mitigating to change a properly-issued discharge.

2.  She provided numerous certificates in an apparent effort to show she is now a citizen in good standing.  However, her discharge was based on her military service at the time.



3.  She received NJP on two occasions, she was reprimanded for striking another Soldier with her fist, and she was convicted by court-martial on two occasions.  She was also given a bad conduct discharge, which was an authorized punishment, pursuant to the approved sentence of a special court-martial for unlawfully entering the assigned room of another Soldier, willfully damaging military clothing, unlawfully striking Private AT, and attempting to escape from the lawful custody of Private AT.  

4.  The appellate review was completed and the affirmed sentence ordered executed.  Conviction and discharge were effected in accordance with applicable laws and regulations in effect at the time, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

5.  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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

6.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to 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)                                         AR20120021945



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ABCMR Record of Proceedings (cont)                                         AR20120021945



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