Title: APPLICANT REQUESTS: That his bad conduct discharge be upgraded to a general discharge
Author: +

ABCMR Memorandum of                                                    AC97-11509
Consideration (cont)

APPLICANT REQUESTS:  That his bad conduct discharge be upgraded to a general discharge.

APPLICANT STATES:  In effect, that he does not debate his punishment; he was properly punished for his offenses.  However, he has learned and grown significantly during the past nine years and has become a responsible husband, father, home owner and productive citizen.  

EVIDENCE OF RECORD:  The applicant’s military records show:

He was born on 28 September 1964.  He completed 12 years of formal education.  He entered the Delay Entry Program on 23 January 1982 and enlisted in the Regular Army on 15 July 1982 for 4 years.  He completed basic training and advanced individual training and was awarded military occupational specialty 72G (Automatic Data Telecommunications Center Operator).

The applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice one time for being disrespectful in language towards his superior non-commissioned officer.

On 8 January 1987, the applicant was convicted by a general-court martial of wrongfully using marijuana, wrongful appropriation of private property, assault/assault and battery, failure to obey a lawful general regulation and solicitation to disobey a lawful general regulation.  He was sentenced to forfeit all pay and allowances, to be confined for 12 months, to be reduced to pay grade  E-1 and to receive a bad conduct discharge.

On 18 November 1987, the U.S. Army Board of Review affirmed the sentence.

The applicant completed a separation physical and was found qualified for separation.

On 25 May 1988, the applicant was discharged, with a bad conduct discharge, pursuant to his general court-martial sentence.  He had completed 5 years,        1 month and 7 days of creditable active service and had 274 days of lost time.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  Trial by court-martial was warranted by the gravity of the offense 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.

3.  While the Board takes cognizance of the applicant’s good post-service conduct, this factor does not warrant the relief requested.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT

                       GRANT FORMAL HEARING

                       DENY APPLICATION

                                                                Loren G. Harrell
					 	Director