IN THE CASE OF:	  

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130004681 


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.

2.  The applicant states she never did any of the things she was prosecuted for.  She did not receive proper/adequate representation.  She feels she was set up by her commanding officer to gain information that she did not possess.  At this time, as an information technology (IT) security professional, she needs a security clearance for top jobs.  She was unable to get trial transcripts.

3.  The applicant provides:

* her DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States)
* Special Court-Martial Orders Number 6, issued by Headquarters, U.S. Army Signal Center, Fort Gordon, GA, dated 11 May 1988
* Orders 44-5, issued by the U.S. Army Correctional Facility, Fort Riley, KS, dated 7 March 1989
* her DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a DA Form 2-1 (Personnel Qualification Record), prepared on 24 April 1987 and reviewed on 13 July 1987
* a DA Form 2-1 prepared on 21 March 1988
* a self-authored letter to Mr. B-----, U.S. Army Legal Services Agency, U.S. Army Court of Criminal Appeals, Fort Belvoir, VA, dated 21 December 2012

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 21 April 1987.

3.  On 16 March 1988, consistent with her pleas, she was found guilty by a special court-martial of:

* wrongful distribution of cocaine on 3 December 1987
* conspiracy to possess cocaine on 3 December 1987

4.  Her sentence consisted of:

* reduction to pay grade E-1
* forfeiture of $500.00 pay per month for 5 months
* confinement for 5 months
* bad conduct discharge

5.  On 14 April 1988, she was given a mental status evaluation.  The examiner found she met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined she was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

6.  On 11 May 1988, the convening approved only so much of the sentence that provided for: 

* reduction to pay grade E-1
* forfeiture of $500 pay per month for 5 months
* 
confinement for 4 months
* bad conduct discharge

7.  Special Court-Martial Order Number 37, issued by the U.S. Army Correctional Activity, Fort Riley, dated 2 March 1989, stated that Article 71(c) having been complied with, the bad conduct discharge will be executed.

8.  On 10 March 1989, she was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial, with a bad conduct discharge.  She completed 1 year, 7 months, and 17 days of creditable active service with 91 days of time lost.

9.  She provided a self-authored letter addressed to Mr. B-----, that included records provided by the National Personnel Records Center (NPRC), St. Louis, MO for his review.

	a.  She stated her commander and first sergeant had set up a sting in order to gain any information she knew about drug distribution at Fort Gordon.  She describes events that took place and being arrested at the gate upon their return to Fort Gordon.

	b.  She stated she was arrested and court-martialed as a drug kingpin.  She had an appointed attorney who said absolutely nothing in her defense because the base commander wanted to make an example of her.

	c.  Upon completion of her confinement she stated she was offered a deal to finish her term in the Army and they would make it all go away, like it never happened.  She declined the offer because she wanted nothing else to do with the U.S. Army.

	d.  She asked that Mr. B----- review her trial transcripts and let her know what she could do to make it right.  She states there are errors and lies in the transcript and she was denied adequate counsel.

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

11.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  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.

	c.  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 evidence shows her trial by court-martial was warranted by the gravity of the offenses for which she was convicted.  She pled guilty to the charges.  Her contention concerning inadequate counsel should have been raised during the appellate process.  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.

2.  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.

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)                                         AR20130004681



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130004681



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1