IN THE CASE OF:	  

		BOARD DATE:	  23 July 2014

		DOCKET NUMBER:  AR20130021600 


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 discharge. 

2.  The applicant states:

* she recognizes the seriousness of her misconduct; however, she has had a productive life since which warrants an upgrade of her "bad conduct discharge"
* she is the proud mother of a 17-year old, she has improved her education, and she has made significant contributions to her community
* her post-service academic and personal achievements warrant clemency

3.  The applicant provides:

* Multiple letters of support/reference letters
* Personal résumé

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

Counsel indicated he is representing the applicant but did not request anything specific, make a statement or provide an argument, or submit any evidence. 

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's records show she enlisted in the Regular Army on 29 December 1993 and she held military occupational specialty 74F (Software Analyst).  

3.  She served in a variety of assignments and she attained the rank of sergeant. She was assigned to 101st Soldiers Support Battalion, Fort Campbell, KY.  She was awarded or authorized the: 

* Army Good Conduct Medal
* National Defense Service Medal
* Noncommissioned Officer Professional Development Ribbon
* Army Service Ribbon
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* Air Assault Badge

4.  On 24 February 1999, she was arraigned at a general court-martial at Fort Campbell, KT, and convicted of: 

* one specification of attempting to steal military property of a value of $2,375
* one specification of conspiring to commit larceny of military property and disposing of military property 
* one specification of wrongfully disposing of military property of a value of $24,000
* one specification of willfully damaging military property 
* one specification of stealing military property of a value of $24,600, more or less

5.  The court sentenced her to a forfeiture of all pay and allowances, confinement for 15 months, reduction to the lowest enlisted grade, and a dishonorable discharge.

6.  On 5 April 1999, the convening authority approved the sentence and, except for that part of the sentence extending to the dishonorable discharge, ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.

7.  On an unknown date, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.  

8.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, General Court-Martial Order Number 104, dated 5 October 2000 shows the convening authority ordered the applicant's dishonorable discharge sentence executed after completion of all required post-trial and appellate reviews.

9.  The applicant was discharged from the Army on 27 October 2000.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 dishonorable discharge.  This document further shows she completed a total of 5 years, 10 months, and 23 days (including excess leave) of creditable military service and she had lost time from 24 February 1999 to 25 January 2000.

10.  She provides a personal résumé and multiple letters of support/character reference letters.  The authors, colleagues, friends, and employers all comment on the applicant's self-motivation, drive, reliability, work ethics, and ambition for the future.  

11.  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.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  Paragraph 3-10 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a general court-martial which was warranted by the gravity of the offenses charged at the time.  The conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  She was given a dishonorable discharge (not a bad conduct discharge as she believes) 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 her overall record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered her service unsatisfactory.  Therefore, she is not entitled to an honorable or a general discharge.

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)                                         AR20130021600



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ABCMR Record of Proceedings (cont)                                         AR20130021600



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