IN THE CASE OF:  	  

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140021093 


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 she was young and played a prank on a girl who did not take the joke.  She did not intend to do any harm.  The prank went too far and she was court-martialed for taking a coat as a result.  It was only a joke.  It was her intent to make a career out of the Army.  Because of one bad decision, her career ended.  Nonetheless, she served her country and she believes she is an honorable person.

3.  The applicant does not provide any additional 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 was born in December 1959.  She enlisted in the Regular Army at 21 years of age on 29 January 1981 and she held military occupational specialty 76C (Equipment Records and Parts Specialist). 

3.  She served in Germany from 30 June 1981 to 8 February 1983 and she was advanced to private first class/E-3 in January 1982.  She was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), Marksman Marksmanship Qualification Badge with Grenade Bar, Army Service Ribbon, and Overseas Service Ribbon. 

4.  On 9 February 1983, at age 23, she was arraigned and tried at a special court-martial at Headquarters, 1st Armored Division, for violating the Uniform Code of Military Justice as follows: 

* Charge I, Article 121, one specification of stealing a blue fox coat, the property of another Soldier, of a value of about 999 German marks
* Charge II, Article 129, burglariously breaking and entering the room of another Soldier at night with intent to commit larceny 

5.  The court found her guilty of the charges and respective specifications and sentenced her to a reduction to private/E-1, a forfeiture of pay per month for 6 months, confinement at hard labor for 6 months, and a bad conduct discharge. 

6.  On 4 March 1983, the convening authority approved a lesser sentence of a bad conduct discharge, confinement at hard labor for 3 months, a forfeiture of pay per month for 3 months, and reduction to E-1, 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.

7.  On 7 June 1983, the U.S. Army Court of Military Review affirmed the findings of guilty and the approved sentence. 

8.  There is no indication she petitioned the U.S. Court of Military Appeals for a grant of review. 

9.  Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, Special Court-Martial Order Number 554, dated 6 September 1983, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's bad conduct discharge duly executed.

10.  The applicant was discharged on 13 September 1983.  Her DD Form 214 (Certificate of Release of Discharge from Active Duty) shows she was discharged in the rank/grade of private/E-1, as a result of court-martial, in accordance with Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 3, with a bad conduct discharge.  This form further shows she completed 2 years, 5 months, and 3 days of net active service during this period and she had lost time from 9 February to 21 April 1983. 

11.  On 16 July 1984, the Army Discharge Review Board (ADRB) reviewed her discharge but found it proper and equitable.

12.  Army Regulation 635-200 provides 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.

	a.  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.  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.

13.  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 was given a bad conduct discharge pursuant to an approved sentence of a special court-martial.  The appellate review was completed and the affirmed sentence was ordered duly executed.  All requirements of law and regulation were met with respect to the conduct of the court-martial and the appellate review process and the rights of the applicant were fully protected.

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

3.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  By law, this Board 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.

4.  The applicant was 21 years of age at the time of her enlistment and she was 23 years of age when she was convicted by a court-martial.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that her acts of indiscipline were the result of his age.

5.  Her service was not satisfactory and she clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, clemency in the form of an honorable or general discharge is not warranted in this case.  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)                                         AR20140021093



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ABCMR Record of Proceedings (cont)                                         AR20140021093



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