BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150012894 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ____x____ __x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150012894 BOARD DETERMINATION/RECOMMENDATION: 1. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130021600, dated 23 July 2014 2. The Board noted that the applicant's DD Form 214 shows she received a dishonorable discharge, but the Deputy Assistant Secretary (Army Review Boards) had approved an upgrade of the dishonorable discharge to a bad conduct discharge. The Board recommends the Case Management Division, Army Review Boards Agency, administratively correct her records to reflect the decision of the Deputy Assistant Secretary (Army Review Boards). . ___________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. BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150012894 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, in the form of a self-authored statement (undated), in effect, reconsideration of her previous request for an upgrade of her bad conduct discharge (BCD) to a general discharge (GD). 2. The applicant states, in effect: a. She knows what she did was very wrong and every day she wishes that she could go back and fix her mistake, which occurred 15 years ago. b. In the past 15 years, she has been doing things to help society. She has volunteered at the local high school as an assistant cheerleading coach, participated in academic programs, and served on the student body council. She has also volunteered at "Girls Inc.," an inner-city after-school program for poverty-stricken families. She has been working in homes with mentally handicapped and disabled people. c. She started and ran her own business in drywall finishing and she donates her time and skills to local churches. She takes two children along with her to teach them what service is and how great it feels to give back to the community. d. She has attempted to overcome adversity by going to school to get an Associate’s Degree in Allied Health and a certificate in surgical technology. She is just "finishing up" a Bachelor’s Degree in Health Science and will be applying to physician’s assistant school this summer. e. If her discharge is upgraded she will be allowed to submit an application to attend physician's assistant school and she will be able to help people on a different level than what she does now. f. She would not be the person she is today without her past life experiences. 3. The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in a letter, dated 14 July 2015, reconsideration of the applicant’s previous request and clemency pursuant to the Army Board for Correction of Military Records (ABCMR) letter, dated 30 July 2014. 2. Counsel specifically requests, in effect that: * the applicant be allowed to appear before the Board * she be granted clemency and that her BCD be upgraded to a general discharge (GD) * as an alternative the applicant’s discharge be upgraded to an under other than honorable conditions (UOTHC) discharge 3. Counsel states the ABCMR’s original decision reflects only the previous dishonorable discharge (DD), which was upgraded to a BCD. He believes the documents that were provided in support of the applicant’s application are sufficient to support relief in the form of clemency. 4. Counsel provides: * ABCMR Letter, dated 30 July 2014 * Memorandum from the Deputy Assistant Secretary (Army Review Boards), dated 27 October 1999 * Applicant's self-authored statement (undated) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 15 November 2013 * Seven supporting letters attesting to the applicant’s good character and post-service conduct (previously considered) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130021600 on 23 July 2014. 2. The applicant enlisted in the Regular Army for 6 years on 29 December 1993, in pay grade E-1. She was promoted through the ranks to pay grade E-5. 3. The available records shows the applicant was tried and convicted by a general court-martial of the following offenses: * attempting to steal military property of a value of $2,375 * conspiring to commit larceny of military property and disposing of military property * disposing of military property valued at $24,000 * damaging military property * stealing military property valued at $24,600, more or less 4. She was sentenced to a forfeiture of all pay and allowances, a reduction to the lowest enlisted pay grade, confinement for 15 months, and a DD. 5. The convening authority approved the sentence as adjudged and, except for that part of the sentence extending to a DD, ordered the sentence executed. 6. The U.S. Court of Military Review affirmed the approved findings of guilty and the sentence. 7. Counsel provides a memorandum from the Deputy Assistant Secretary (Army Review Boards), dated 27 October 1999, which he refers to as an order. This document appears to show the Army Clemency and Parole Board upgraded the applicant’s DD to a BCD, effective 15 October 1999. 8. However, General Court-Martial Order Number 104, published on 5 October 2000 shows the applicant’s sentence was affirmed and she would be issued a DD. 9. On 27 October 2000, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction. She completed 5 years, 10 months, and 27 days of net active service. Her DD Form 214 shows she received a DD. 10. On 23 July 2014, the ABCMR denied the applicant's request for an upgrade of her discharge. REFERENCES: 1. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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 modify the severity of the punishment imposed. 2. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-11 provides that a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed. b. Paragraph 3-7a states that an HD 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 states 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. 3. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant was convicted by a general court-martial of attempting to steal military property, conspiring to commit larceny of military property, disposing of military property, damaging military property, and stealing military property. She was sentenced to a forfeiture of all pay and allowances, a reduction to the lowest enlisted pay grade, confinement for 15 months, and the issuance of a DD. 2. She was incarcerated on 15 October 1999. Her records were reviewed by the Army Clemency and Parole Board. The Deputy Assistant Secretary (Army Review Boards) directed that upon discharge she was to receive a BCD. 3. However, General Court-Martial Order Number 104, published on 5 October 2000 ordered the issuance of a DD instead of the BCD directed by the Deputy Assistant Secretary. 4. The DD Form 214 she received erroneously shows she received a DD. The evidence supports issuing her a DD Form 214 that reflects the decision of the Deputy Assistant Secretary (Army Review Boards). 5. The applicant’s supporting statements have been considered, and her post-service conduct is commendable. However, neither the applicant nor her counsel provided any evidence sufficiently mitigating to overcome the seriousness of the charges for which she was convicted. 6. 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 (i.e., a BCD) and the reasons therefore were appropriate. 7. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012894 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012894 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2