IN THE CASE OF: 

		BOARD DATE:	    27 March 2014

		DOCKET NUMBER:  AR20130013257 


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 in order to receive the assistance she so desperately needs.

2.  The applicant states that during her service she contracted the "Human Immune Virus (HIV)."  Subsequently, circumstances relating to the disease resulted in her discharge from service.  Recent requests to receive medical assistance were declined due to guidelines which stated her discharge could not be dishonorable.  It is her understanding that if any behavior was dishonorable it would be clearly stated on the DD Form 214 (Certificate of Release or Discharge from Active Duty).  Since the incident her life has changed and she accepts responsibility for her actions.  She is now facing an illness that will never go away and is in need of medical assistance.  

3.  The applicant provides:

* DD Form 214
* General Court-Martial Order 243
* a self-authored statement
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* a letter




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 28 August 1996.

3.  Her record contains General Court-Martial Order Number 6, issued by Headquarters, U.S. Army Garrison Aberdeen Proving Ground, MD, dated            2 August 1999, which shows she pled guilty and was found guilty of violating Articles 90, 107, and 128 of the Uniform Code of Military Justice (UCMJ) for:

   a.  Willfully disobeying a lawful command from her commissioned officer to verbally advise all prospective sexual partners of her diagnosed condition prior to engaging in any sexual intercourse, and to use condoms if she engaged in sexual intercourse. 

   b.  Making a false official statement to a member of the U.S. Army Criminal Investigation Command that after being diagnosed with HIV, she did not have sex with anyone except those named in the statement, or words to that effect, which was false.

   c.  Committing assault by wrongfully exposing several individuals to HIV, with the means likely to produce death or grievous bodily harm.

4.  On 19 January 1999, the following sentence was adjudged:  to forfeit all pay and allowances, to be reduced to private/E-1, to be confined for 3 years, and to be discharged from the service with a bad conduct discharge.

5.  Her record contains General Court-Martial Order Number 243, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 1 December 2000.  that states in a general court-martial case of the applicant, the sentence of reduction to the rank of private/E-1, a forfeiture of all pay and allowances, confinement for 3 years, and a bad conduct discharge, adjudged on 19 January 1999, as promulgated in Corrected General Court-Martial Order Number 6, issued by Headquarters, U.S. Army Garrison Aberdeen Proving Ground MD, dated 2 August 1999, has been affirmed.  The applicant was credited with 114 days of confinement against the sentence to confinement.  The automatic forfeiture of all pay and allowances as required by Article 58b, Uniform Code of Military Justice, was waived effective 2 February 1999 and was rescinded on 
1 August 1999.  Article 71(c) having been complied with, the bad conduct discharge will be executed.

6.  Her record contains a DD Form 214 that shows she was discharged on
5 March 2003 under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 3, as
a result of court-martial with a bad conduct discharge.  She completed 4 years, 3 months, and 23 days of creditable active service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 3 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.

8.  Army Regulation 635-200, paragraph 3-7b, states 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 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 available evidence shows she was convicted by a general court-martial.  The conviction and discharge were effected in accordance with applicable laws and regulation.

2.  Notwithstanding the applicant's contention, evidence shows she willfully disregarded a lawful order as well as putting in danger the safety and lives of those she chose to become intimate with.  She was given a bad conduct discharge 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.

3.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Her misconduct also renders her service unsatisfactory.  Therefore, she is not entitled to an upgrade of her discharge.

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 the absence of any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is an 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 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)                                         AR20130013257



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ABCMR Record of Proceedings (cont)                                         AR20130013257



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