IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130021106 


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.

2.  The applicant states:

	a.  She has always contended that she did not use any drugs prior to the urinalysis.

	b.  She does not know how the events happened as they did.

	c.  She joined the military and she completed basic and advanced individual training without problems.

	d.  She was stationed at Fort Stewart, GA, where she developed problems with her feet.  She reenlisted with no problems.  She lost her mother and her father 1 month apart, but she still served her country until 1983 without incident.

	e.  She started having problems with her shoulder and back.

	f.  In 1987, she supposedly tested positive in a urinalysis.  She was asked to get out of the Army or request trial by court-martial.  She chose trial by court-martial because she was not going to agree to something she did not do.

	g.  At that time, the "Don't Ask, Don't Tell" policy was not in effect.  She was court-martialed and she was sent to Fort Riley, KS, for 4 months.

	h.  She would like her discharge upgraded because she has medical problems with her feet, back, and shoulders which were directly related to her military service.

3.  The applicant provides her DA Form 2-1 (Personnel Qualification Record – Part II) and Certificate of Military Service.

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 5 January 1981.  On 30 December 1983, she reenlisted for a period of 3 years.  On 30 September 1986, she reenlisted for a period of 4 years.

3.  On 2 September 1988, she was found guilty contrary to her plea by a special court-martial of wrongful use of cocaine.  The sentence consisted of confinement for 6 months, reduction to the grade of private/E-1, and a bad conduct discharge.

4.  On 8 February 1989, the U.S. Army Court of Military Review affirmed the findings and the sentence.

5.  On 7 June 1989, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed.

6.  Accordingly, she was discharged on 14 June 1989 as a result of a court-martial with a bad conduct discharge.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	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.

8.  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's request for an upgrade of her bad conduct discharge was carefully considered.

2.  The trial by court-martial was warranted by the gravity of the offense charged. Her conviction and discharge were effected in accordance with applicable laws and regulations and the final discharge appropriately characterized the misconduct for which she was convicted.  Any contentions she had that she did not use any drugs should have been raised and finally adjudicated in the court-martial/appellate process.

3.  Based on her serious misconduct, her service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to 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 seriousness of her criminal offense and absent sufficient mitigating factors, the type of discharge directed and the reasons therefor were appropriate.

5.  Her contentions were noted; however, she failed to provide evidence supporting her contentions.

6.  There is no evidence of error or injustice in her separation processing.  Therefore, there is no basis to grant 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 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)                                         AR20130021106



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ABCMR Record of Proceedings (cont)                                         AR20130021106



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