IN THE CASE OF:  

		BOARD DATE:  19 December 2013

		DOCKET NUMBER:  AR20130007689


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 her bad conduct discharge be upgraded to an under honorable conditions (general) discharge.

2.  The applicant states:

* she knows that during her time serving this country she made choices that were not honorable
* she joined the Army when she was 19 years old
* she had many issues in her life at the time, for which she should have sought mental health help, but instead her actions and behaviors were destructive
* she has gone through many years of counseling since then to understand why she made choices that were destructive
* it has been 27 years since she received her bad conduct discharge, she has not gotten into any trouble since then
* she regrets and apologizes for her actions that were not honorable
* she has changed in the past 27 years
* she knows that she has already received one upgrade so far, to an under other than honorable conditions discharge
* she is now asking for just one more upgrade

3.  The applicant provides no additional 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.  On 10 February 1983, the applicant enlisted in the Regular Army.  She completed initial entry training and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  The highest rank/grade she attained while serving on active duty was private first class (PFC)/E-3.

3.  On 11 February 1985, before a special court-martial at Fort Polk, LA, she was convicted of:

* two specifications of Charge I for violating Article 121 of the Uniform Code of Military Justice (UCMJ), for stealing three Nikon cameras, on or about           21 September 1984, and for wrongfully appropriating three Nikon cameras, on or about 26 October 1984
* three specifications of Charge II for violating Article 108 of the UCMJ, for wrongfully selling or pawning U.S. government property, on or about       21 September 1984 and 3 October 1984
* two specifications of Charge III for violating Article 134 of the UCMJ, for wrongfully and unlawfully subscribing, under oath, false statements in substance, on or about 30 October 1984 and 20 November 1984

The court sentenced her to forfeiture of $410.00 pay per month for 2 months, confinement for 2 months, and discharge from the Army with a bad conduct discharge.

4.  On 5 March 1985, the convening authority approved the sentence, and, except for the bad conduct discharge, ordered it executed.  The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Military Review.

5.  On 27 June 1985, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in her court-martial.  The U.S. Court of Military Appeals denied her petition for review.

6.  Special Court-Martial Order Number 3, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, LA on 27 January 1986, shows that after completion of all required post-trial and appellate reviews, the bad conduct discharge as ordered by Special Court-Martial Order Number 6, issued by Headquarters, 5th Infantry Division (Mechanized), Fort Polk, LA, on 5 March 1985, was ordered duly executed.

7.  On 20 March 1986, she was discharged pursuant to her court-martial under the provisions of chapter 3 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was discharged under the provisions of Special Court-Martial Order Number 3, dated 27 January 1986, as a result of court-martial, and she was given a bad conduct character of service.

8.  On 23 August 1988, the Army Discharge Review Board (ADRB) considered her request for a change in her discharge characterization and/or clemency; however, it found no basis for granting relief and denied her request.

9.  Army Regulation 635-200, in effect at the time, 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 a bad conduct discharge.  It stipulates that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed.

   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.

   c. Paragraph 3-11 provides that a Soldier will 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.

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 was given a bad conduct discharge pursuant to an approved sentence by a special court-martial, which was warranted by the gravity of the offenses charged at the time.  Her conviction and discharge were effected in accordance with applicable laws and regulations and her discharge appropriately characterizes the misconduct for which she was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

2.  All requirements of law and regulation were met and her rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction 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.

3.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20130007689



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