IN THE CASE OF:	  

		BOARD DATE:	  30 January 2014

		DOCKET NUMBER:  AR20130009841 


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 upgrade of her bad conduct discharge (BCD) to a general discharge.

2.  She states that since she separated from the military a little over 13 years ago, she has proven to be a trustworthy person who has much to offer to society. Because of her pride in the years she successfully served in the military she has influenced several young women and men to join the Armed Forces.

3.  She provides:

* Self-authored statement, dated 12 March 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Court-Martial Orders Number 5, issued by Headquarters, U.S. Army Southern European Task Force, dated 19 June 1998
* General Court-Martial Orders Number 63, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 24 April 2000
* Veteran's Day certificates and programs
* Certificate of Completion, dated 4 November 2008
* Certificate of Meritorious Service, dated 11 November 2008
* Certificate of Appreciation, dated 11 May 2008
* Nine supporting statements, dated between 9 March 2011 and 25 April 2013

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 20 January 1981.

3.  On 28 April 1998, she was convicted by a general court-martial of:

* conspiring with a civilian and a noncommissioned officer to steal Army and Air Force Exchange Service (AAFES) merchandise of a value of more than $100.00 between 1 December 1996 and 22 January 1998
* stealing merchandise from AAFES consisting primarily of clothing and perfumes of a value of more than $100.00 on divers occasions between 
1 December 1996 and 22 January 1998
* stealing $365.95 from AAFES by returning Microsoft Office 97 on
6 December 1997, which was previously wrongfully appropriated
* stealing $365.95 from AAFES by returning Microsoft Office 97 on
17 December 1997, which was previously wrongfully appropriated

4.  The court sentenced her to reduction to the grade of E-1, a forfeiture of all pay and allowances, to perform hard labor without confinement for 90 days, and a BCD.  The convening authority approved the sentence and the U.S. Army Court of Criminal Appeals affirmed the findings and sentence on 3 December 1998.  The BCD was ordered executed.

5.  Her DD Form 214 shows she was discharged with a BCD on 23 August 2000 under the provisions of Army Regulation 635-200, chapter 3.  She had completed 19 years, 7 months, and 4 days of total active service.

6.  The nine supporting statements submitted by the applicant speak highly of the applicant's character and her willingness to help those in need.  One author stated that the applicant was a big part of her special needs son's life and performed extra duties in regard to his care without receiving extra money.  The pastor said the applicant was a faithful member of the church and excelled in her ability to work as a team member.  The Program Director of Millcreek said the applicant exemplified a strong work ethic and an ability to empower the disabled to function normally in their communities.  The authors of the supporting statements all agreed that the applicant deserves a second chance and her discharge should be upgraded.

7.  The applicant also provided numerous certificates that show she has provided invaluable service to her community and to her church since her discharge.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or BCD.  It provides 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 must be 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.

9.  Court-martial convictions stand as adjudged or as 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.  Although the applicant provided numerous supporting statements and certificates attesting to her character and invaluable service to her church and community, good post-service conduct alone is not a basis for upgrading a discharge.

2.  The evidence shows she was convicted by a general 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.

3.  She was given a BCD pursuant to an approved sentence of a general court-martial.  The appellate review was completed and the affirmed sentence ordered duly executed.  All requirements of law and regulation were met and her rights were fully protected.

4.  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 her offense and absent any mitigating factors, the type of discharge directed and the reasons 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)                                         AR20130009841





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009841



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1