IN THE CASE OF:	

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130013871 


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 dishonorable discharge.

2.  The applicant states:

* she contracted a blood disorder and was given a court-martial
* after contracting the blood disorder she was in an automobile accident and lost her only child
* her life was out of control
* she regrets her actions which led to her discharge
* she has never forgotten what she learned while in the military
* she has been an active member of the community for more than 5 years
* she is employed with the West Virginia Department of Motor Vehicles
* she is the mother of a 15-year old daughter
* she is positive, she prides herself on following the rules, and she leads by example 

3.  The applicant provides:

* five character reference letters
* résumé
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
 



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 July 1981.  She completed her training and was awarded military occupational specialty 73C (finance specialist).  She remained on active duty through continuous reenlistments and she attained the rank of sergeant on 1 February 1992.  On her final reenlistment, on 18 March 1994, she reenlisted for a period of 2 years.  

3.  On 27 October 1994, in accordance with her pleas, she was convicted by a general court-martial of disobeying lawful commands (four specifications), assault with intent to inflict grievous bodily harm (by exposing Soldiers to the HIV (Aids) virus) (three specifications), and adultery.  She was sentenced to be dishonorably discharged from the service, to be confined for 18 months, to forfeit all pay and allowances, and to be reduced to E-1.  On 8 March 1995, the convening authority approved only so much of the sentence as provided for reduction to E-1, a forfeiture of all pay and allowances, confinement for 540 days, and a dishonorable discharge.

4.  On 20 June 1995, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.

5.  On 18 February 1997, the convening authority ordered the dishonorable discharge duly executed.

6.  She was issued a dishonorable discharge on 28 February 1997 under the provisions of chapter 3, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), as a result of a court-martial.  She completed a total of 14 years, 1 month, and 16 days of creditable active service with 540 days of lost time.

7.  She provides character reference letters from her ex-husband and friends who attest:

* she has an outgoing spirit and willingness to help others
* she had a setback when she lost her son in a car accident
* she is a fantastic, lovable, and fair-minded person
* she is a person of good moral character
* she is a model citizen, mother, faithful church member, and volunteer in her community
* she is honest, loyal, supportive, and simply the best
* she is a pillar in the community
* she is responsible and upstanding  

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

	a.  Chapter 3 states that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial.  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.

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 character reference letters submitted on behalf of the applicant failed to show her discharge was unjust and should be upgraded.

2.  A trial by court-martial was warranted by the gravity of the offenses charged.  Her conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which she was convicted.

3.  Her record of service during her last enlistment included one general court-martial conviction for serious offenses.  As a result, her record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's service is insufficiently meritorious to warrant an honorable or a general 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 applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons were therefore appropriate.  As a result, clemency is not warranted in this case.

5.  In view of the foregoing, there is no 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)                                         AR20130013871





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ABCMR Record of Proceedings (cont)                                         AR20130013871



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