IN THE CASE OF 

		BOARD DATE:	    15 April 2014

		DOCKET NUMBER:  AR20130014618 


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 honorable.

2.  The applicant states, in effect:

	a.  She has been a lawful citizen and is involved in the community.  She does not believe that she receive a fair judgment due to the fact that she was on the apartment lease with the R_____ family.  She paid $600 to secure the apartment and paid half of the bills which put her at zero balance.  Also, it was Private (PVT) JR who gave her the pin number to his debit card when they were in boot camp.  

	b.  They were roommates at a house off-base and PVT JR was the only one with a vehicle.  She depended on him to get to work.  The first morning she had to report for physical training at Fort Drum, NY, PVT JR couldn't drive her to base.  She withdrew $20 from the automated teller machine (ATM) and made it to formation.  

	c.  The next day a sergeant (SGT) drove her home and she found PVT JR was getting out of the lease.  The SGT helped her move into the barracks and that is when she decided to withdraw $600 for the money she gave PVT JR for the lease.  So in total, she took $600 from PVT JR; however, he said she took $1,200 even though ATM cameras did not have her photograph other than the two occasions.  

	d.  PVT JR confronted her and told her his spouse was pressing charges but if she paid him the money everything would be okay.  She was young and scared at the time so she did what he told her.  He came to see her everyday until the day of the trial.  His family used her and mistreated her; then they acted as if she had used them.

	e.  She kept quiet during the entire trial but today she speaks out.  She is now a mature, young lady with a license in cosmetology and she wants to thrive in life.  She loved the military and she did not fail the military.  She just fell along the path and then got up; she is now on the right path.  She has four children and maintains good behavior.  She would like a second chance and a better tomorrow for her children.

3.  The applicant provides her DD Form 214 (Certificate of Release or Discharge from Active Duty), two orders, and a DA Form 2-1 (Personnel Qualification Record).

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 February 2001 and she held military occupational specialty 92Y (Unit Supply Specialist).  On 28 October 2001, she was assigned to the 41st Engineer Battalion, 10th Mountain Division, Fort Drum, NY.

3.  On 29 April 2002, she was convicted by a general court-martial of one specification of stealing an ATM card from PVT JR on or about 29 October 2001 and four specifications each of stealing U.S. currency of $100 or less, the property of PVT JR, between 30 October and 2 November 2001.


4.  The court sentenced her to a reduction to PVT/E-1, a forfeiture of all pay and allowances, 7 months of confinement, and a bad conduct discharge.  She was subsequently assigned to the Personnel Confinement Facility, Fort Sill, OK.

5.  On 26 July 2002, the convening authority approved the sentence and, except for the bad conduct discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

6.  General Court-Martial Order Number 357, dated 16 October 2003, issued by the U.S. Army Field Artillery Center and Fort Sill, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered her bad conduct discharge executed.  On 12 October 2004, she was discharged accordingly.

7.  The DD Form 214 she was issued shows 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 characterization of service.  She completed 3 years, 1 month, and 24 days of total active service with 698 days of excess leave and 178 days of lost time due to being in confinement.

8.  Army Regulation 635-200, 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.

9.  Army Regulation 635-200, 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.

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 evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  Her conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and her discharge appropriately characterized the misconduct for which she was convicted.  She could have raised the claim of the amount of monies rightfully owed to her as an issue to be considered in mitigation during the court-martial and/or appellate process.

2.  By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  The applicant's contention that she has been a good citizen since her discharge is noted; however, that does not mitigate the behavior that led to the court-martial charges.  She was convicted while she was serving on active duty.  After a review of her record of service, it is clear her service did not meet the criteria for an honorable or a general discharge, or any other characterization of service other than the one she received.  

4.  In view of the foregoing, she is not entitled to the 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)                                         AR20130014618



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ABCMR Record of Proceedings (cont)                                         AR20130014618



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