IN THE CASE OF: 
BOARD DATE: 4 January 2023 
DOCKET NUMBER: AR20220003787 


APPLICANT REQUESTS:  upgrade of her bad conduct discharge.   

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 

•DD Form 149 (Application for Correction of Military Record)

•Personal Statement

•Statement of Support

•DD Form 214 (Certificate of Release or Discharge from Active Duty)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10, U.S.Code, section 1552(b); however, the Army Board for Correction of Military Records(ABCMR) conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states she is a better person and has learned from her mistakes. Sheis trying to build a better life for herself and her family. It's hard to have the opportunitiesthat others have and that she knows she can achieve because of her discharge. Sheasks the Board to help her better her career and life. She also adds in a statement:

a.In September 2005, she received a Bad Conduct Discharge. At the time, she wasmuch younger and was facing problems from her past. She does not excuse her behavior, but she is truly sorry, and she apologizes. She made a mistake in which cost her a military career. She let down her unit, platoon, and the Army, as well as herself. She can't change her actions from then, but now she is a totally different person. She is 44 years old with a three-year-old son and a five-year-old granddaughter. 

b.She is asking to be able to have an upgrade on her discharge from what she firstobtained. She is asking to grant her an upgrade from Bad Conduct Discharge to a more desirable discharge. She wants her kids and granddaughter to know that even though she made a terrible mistake, she did her very best to change the outcome of a horrific error in her life; in which she created to herself.  

3.In a statement of support, the author states the applicant joined the military for agood cause. Although she has made a mistake, she has also learned from it. She hasmatured and became a more understanding and dedicated citizen.

4.Review of the applicant’s service records shows:

a.She enlisted in the Regular Army on 5 March 2002. She held military

occupational specialty 56M (Chaplain Assistant). She served in Hawaii from 24 December 2002 to 5 October 2005.  b.On 18 September 2005, at Fort Campbell, KY, the applicant was convictedby a general court-martial of: 

•Charge I, one specification of stealing U.S. currency, military property

•Charge II, one specification of being absent without leave from 7 March to 26March 2005 when she was apprehended

•Charge III, one specification of, with intent to defraud, falsely making thesignature of another on a check

•Additional Charge I, one specification of conspiring with a sergeant to commitan offense of larceny of U.S. currency, and in order to effect the object of theconspiracy, wrongfully made a check payable to the sergeant and thesergeant presented the check to the bank and received U. S. currency

•Additional Charge II, one specification of, with intent to defraud, falsely makethe signature of an unknown individual as an endorsement to a certain writingwhich was used to the legal harm of the U. S. Government, in that she usedthat form to wrongfully obtain the services of a military space-a flight fromOahu, Hawaii to the continental United States (Guilty only of false orunauthorized pass)

•Additional Charge III, one specification of, with intent to defraud, falselypretend to ascertain U. S. Air Force personnel that she was on approvedleave status, then knowing that the pretenses were false, and by meansthereof did wrongfully obtain from the U. S. Government services (space-aflight) from Oahu, Hawaii to the continental United States



c.The court sentenced her to reduction to the lowest enlisted grade of private/E-1,confinement for 13 months, and to be discharged from the service with a bad conduct discharge.   

d.On 10 January 2006, the convening authority approved only so much of thesentence as provides for 8 months of confinement, reduction to private/E-1, and a bad conduct discharge, 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.  
e.General Court-Martial Order Number 171, issued by Headquarters, U.S. ArmyArtillery Center, Fort Sill, OK on 19 July 2007, shows the appellate review had been completed and the sentence would be executed.  

f.The applicant was discharged on 17 August 2007. Her DD Form 214 (Certificateof Release or Discharge from Active Duty) shows she was discharged in the rank/grade of private/E-1 as a result of court-martial conviction in accordance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a bad conduct discharge (Separation Code JJD, Reentry Code 4). She completed 5 years, 1 months, and 14 days of active service. However, she had lost time from  
18 September 2005 to 16 January 2006 and she was on excess leave from 3 February 2006 to 17 August 2007. She was awarded or authorized the Army Service Ribbon.  

4.She did not qualify to have his discharge reviewed by the Army Discharge ReviewBoard (ADRB). By regulation (AR 15-180 (Army Discharge Review Board (ADRB)),service members convicted by a general court-martial are not eligible to apply to theADRB, and may apply to the ABCMR.

5.By regulation (AR 635-200), a Soldier will be given a bad conduct discharge pursuantonly to an approved sentence of a general or special court-martial. The appellate reviewmust be completed, and the affirmed sentence ordered duly executed.

6.In reaching its determination, the Board can consider the applicant's petition and herservice record in accordance with the published equity, injustice, or clemencydetermination guidance.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of her characterization of service.  Upon review of the applicant’s petition and available military record, the Board determined there was  
insufficient evidence of in-service mitigating factors to overcome the misconduct. ABCMR 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.  The applicant no provided post-service character achievements or letters of support to weigh a clemency determination. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : 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. 



Microsoft Office Signature Line...
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. 


REFERENCES: 

1.Title 10, United States Code, section 1552(b), provides that applications forcorrection of military records must be filed within 3 years after discovery of the allegederror or injustice. This provision of law also allows the ABCMR to excuse an applicant'sfailure to timely file within the 3-year statute of limitations if the ABCMR determines itwould be in the interest of justice to do so.

2.Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) providesfor the separation of enlisted personnel:

a.Paragraph 3-7a provides that an honorable discharge is a separation with honorand 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 Armyunder 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 3-7c states a discharge under other than honorable conditions is anadministrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. 

d.Paragraph 3-11 states a member will be given a bad conduct discharge pursuantonly to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  

3.Title 10, U.S. Code, section 1552, provides that the Secretary of a MilitaryDepartment may correct any military record of the Secretary's Department when theSecretary considers it necessary to correct an error or remove an injustice.  Withrespect to records of courts-martial and related administrative records pertaining tocourt-martial cases tried or reviewed under the Uniform Code of Military Justice, actionto correct any military record of the Secretary's Department may extend only tocorrection of a record to reflect actions taken by reviewing authorities under the UniformCode of Military Justice or action on the sentence of a court-martial for purposes ofclemency.  Such corrections shall be made by the Secretary acting through boards ofcivilians of the executive part of that Military Department.

4.On 25 July 2018, the Under Secretary of Defense for Personnel and Readinessissued guidance to Military Discharge Review Boards and Boards for Correction ofMilitary/Naval Records (BCM/NRs) regarding equity, injustice, or clemencydeterminations.  Clemency generally refers to relief specifically granted from a criminalsentence.  BCM/NRs may grant clemency regardless of the type of court-martial.However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which maybe warranted based on equity or relief from injustice.  This guidance does not mandaterelief, but rather provides standards and principles to guide Boards in application of theirequitable relief authority.  In determining whether to grant relief on the basis of equity,injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation,external evidence, sworn testimony, policy changes, relative severity of misconduct,mental and behavioral health conditions, official governmental acknowledgement that arelevant error or injustice was committed, and uniformity of punishment.  Changes to thenarrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 


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