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ARMY | BCMR | CY1990-1993 | 9306515
Original file (9306515.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to a general discharge.
APPLICANT STATES : That his conviction for possession of LSD was his first offense and until that time he had an excellent record. He believes that the type of discharge he received was extremely harsh considering he was only 20 years old at the time. Since his military service he has been a good citizen with no criminal record. In support of his request, he provides three letters attesting to his good character and citizenship.

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

He enlisted in the Regular Army for 2 years on 27 July 1972 and was discharged with a BCD on 27 November 1979 pursuant to the sentence of a special court-martial. He was retained in the service for 1950 days in an excess leave status pending review/appeal of his sentence. The highest pay grade he held was private first class.

Following training as an engineer bridge specialist he was assigned to Fort Riley, Kansas. During this assignment between December 1972 and April 1974 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on five occasions; two NJP’s for AWOL, two NJP’s for violation of lawful orders, and one NJP for disrespect toward an NCO.

On 4 June 1976, before a special court-martial, he pleaded not guilty to wrongfully having in his possession an unknown amount of pills containing LSD. He was found guilty as charged and sentenced to confinement at hard labor for 2 months, to forfeit $200.00 pay per month for 6 months and to receive a BCD.

After his case was reviewed by the US Army Court of Military Review and his appeal considered by the US Court of Military Appeals, the sentence was affirmed on 18 September 1979. Accordingly, he was discharged effective 27 November 1979 under the provisions of paragraph 11-2, Army Regulation 635-200.
The Army Discharge Review Board denied his request for upgrade of his discharge on 23 February 1989.

Army Regulation 635-200, paragraph 11-2 provides that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. The same regulation provides that a dishonorable discharge or BCD will result in expulsion from the Army.

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. Trial by court-martial was warranted by the gravity of the offense charged. Conviction and discharge were accomplished in accordance with applicable law and regulations.

2. His statement that he was young, and presumably immature, at the time of his court-martial is not sufficiently mitigating to warrant relief. It is noted that he admits to being 20 years of age at the time of the offense.

3. Careful consideration has been given to the applicant’s overall record of service during his relatively short period of active duty. However, his record of NJP’s and conviction by a special court-martial render his prior service too undistinguished to support upgrading his discharge on that basis alone.

4. The character references submitted by the applicant have been noted by the Board, and while the Board is empathetic, it believes that the applicant’s post-service conduct is




reflective of that expected of a good citizen and does not overcome the conduct he displayed as a soldier.

5. In view of the foregoing, there appears to be 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




                                                      Karl F. Schneider
                                                      Acting Director

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