IN THE CASE OF:	  

		BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150000934 


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:

* her service in the Army began in January 1985
* from this period until August 1999 she served her country with dedication and exemplary service
* she is requesting consideration based on her honorable service from January 1986 through August 1999
* she is by no means excusing the offenses
* the discharge upgrade would allow her to find adequate employment as well as further her education

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* email from Liberty University

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 7 January 1986.  She completed her training and she was awarded military occupational specialty 75B (personnel administrative specialist).  She remained on active duty through continuous reenlistments and she attained the rank of staff sergeant on 1 September 1995.  On 26 October 1996, she reenlisted for a period of 4 years.

3.  On 17 August 1999, she was convicted by a general court-martial of:

* stealing U.S. currency in the amount of $16,634.64, the property of the U.S. government (6 specifications)
* making false claims against the U.S. government (6 specifications)
* making false official statements with intent to deceive (3 specifications)
* bigamy
* forgery
* conspiring to commit obstruction of justice

4.  She was sentenced to reduction to pay grade E-1, forfeiture of all pay and allowances, confinement for 6 years, and a dishonorable discharge.  On 24 August 2000, the convening authority approved only so much of the sentence as provided for confinement for 42 months, reduction to E-1, forfeiture of all pay and allowances, and a dishonorable discharge.

5.  The U.S. Army Court of Military Review and convening authority decisions are not available for review.

6.  On 14 February 2001, the Deputy Assistant Secretary (Army Review Boards) granted clemency by upgrading her dishonorable discharge to a bad conduct discharge.

7.  She was issued a bad conduct discharge on 30 July 2003 as a result of a court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3.  She completed a total of 13 years, 6 months, and 20 days of creditable active service with 1,442 days of lost time.

8.  Army Regulation 635-200 sets forth the basic authority for 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 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or a special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.

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.  In February 2001, clemency was granted by upgrading the applicant's dishonorable discharge to a bad conduct discharge.

2.  The applicant wants her bad conduct discharge upgraded so she can further her education and get a better job.  However, a discharge is not changed for the purpose of enhancing education and employment opportunities.

3.  Her 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.

4.  Her prior honorable service was noted.  However, her record of service during her last enlistment included one general court-martial conviction and 1,442 days of lost time.  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.

5.  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, any further clemency is not warranted in this case.

6.  In view of the foregoing evidence, 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 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)                                         AR20150000934





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ABCMR Record of Proceedings (cont)                                         AR20150000934



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