1.  The applicant requests clemency by upgrading her bad conduct discharge.
She states, in effect, that she was convicted on the non-truthful testimony of the two women involved in the fight and because her commander was biased against females.  She had a prior honorable discharge; her conduct and efficiency rating were always good to excellent.  She includes certificates of commendation/appreciation as supporting documentation.

2.  The applicant’s military records show she enlisted in the Regular Army on     29 December 1986.  She was honorably discharged on 29 March 1989 for the purpose of immediately reenlisting on 30 March 1989.

3.  The applicant’s promotion record is as follows:  enlisted as E-1; advanced to E-2; advanced to E-3; reduced to E-1; advanced to E-2; advanced to E-3; promoted to E-4; reduced to E-3; reduced to E-2.  None of the Article 15s reducing her are available.

4.  On 5 November 1991, the applicant was convicted by a general court-martial of conspiracy to kidnap, kidnapping, and three specifications of assault.  She was sentenced to be reduced to pay grade E-1, to forfeit all pay and allowances, to receive a bad conduct discharge and to confinement for 15 months.

5.  On 1 May 1992, the applicant was placed on excess leave.

6.  On 28 January 1993, after reviewing the case and considering the appellant’s challenges of the legal and/or factual sufficiency of the conspiracy to kidnap and kidnap charges and the multiplicity of the assault with the kidnapping charge, the U.S. Army Court of Military Review affirmed the findings and sentence.

7.  On 7 July 1993, the applicant was discharged, with a bad conduct discharge pursuant to her court-martial sentence.  She had completed 5 years, 8 months and 27 days of creditable active service and had 280 days of lost time.

8.  Title 10, U.S. Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.

9.   The VA, in determining qualifications for benefits administered by that agency, generally holds that an individual who accepts a discharge prior to completion of his complete term of obligated service may not be eligible for benefits unless or until the VA determines that the early discharge amounted to a complete and unconditional separation from the service.

CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2.  All of the applicant’s contentions were or should have been raised before the court-martial or at some time during the appellate process.  The completion of that process constitutes a final adjudication of the legal issues in her case and furnish no basis for recharacterization of the discharge.

3.  Although it would not be appropriate to change the records to show that the applicant was discharged honorably or under honorable conditions from the reenlistment commencing on 30 March 1989, it appears that the circumstances of the applicant’s honorable discharge on 29 March 1989 have worked an injustice upon her by depriving her of consideration for certain VA benefits for the preceding period of service.

4.  In view of the foregoing, findings and conclusions, and in recognition of her more than 3 years of honorable service, it would be unjust to consider her honorable discharge of 29 March 1989 as other than a complete and unconditional separation from the military.  It would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was eligible for a complete and unconditional separation from the military service at the time of her honorable discharge on 29 March 1989.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                                                           
						    CHAIRPERSON