APPLICANT REQUESTS:  In effect, that his bad conduct discharge be upgraded to honorable.

APPLICANT STATES:  That during his court-martial he was given the choice of either returning to Fort Riley, Kansas for 9 months of retraining or being discharged: he chose to stay in the Army; that he was in the hospital at the time of his alleged AWOL; that he was offered a medical discharge which he declined because he wanted to stay in the Army; and that he was lied to by his first sergeant who told him if he came back to the unit he would not be kicked out of the service.

In support of his request he submits seven letters attesting to his good character.

COUNSEL CONTENDS:  That during his court-martial proper weight was not given to the findings of a mental health evaluation that indicated that the applicant was incapable of controlling his own actions and understood little if any of what was going on or the statement that he would always be dependent upon somebody or something.  Counsel asks that in view of his outstanding post-service conduct and his debilitating in-sevice mental state, the Board carefully and sympathetically consider the evidence and render a fair and impartial decision 

EVIDENCE OF RECORD:  The applicant's military records and record of trial show:

He enlisted in the Regular Army for 3 years on 26 January 1977.  After training as a cannon crewman at Fort Sill, Oklahoma he was reassigned to Fort Bragg, North Carolina where he was subsequently promoted to pay grade E-2.  His only other place of duty during his enlistment was at the US Army Retraining Brigade (USARB), Fort Riley, Kansas.

His military awards include the Expert Badge with rifle bar and the Hand Grenade Badge first class.  On 8 February 1980, after 2 years and 2 months of creditable service, he received a bad conduct discharge pursuant to the sentence of a special court-martial conviction.

While a trainee at Fort Sill, Oklahoma he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for 4 hours of AWOL.

While assigned at Fort Bragg, North Carolina, he was charged with violation of Article 86, UCMJ for 8 days of AWOL.  He pleaded guilty before a special court-martial and was sentenced to forfeit $75.00 a month for a period of 6 months and to be confined at hard labor for 30 days.

Following his period of confinement he was reassigned to the USARB, Fort Riley, Kansas.  There, on 14 June 1978, he accepted NJP for 1 day AWOL. 

On 4 June 1979 he pleaded guilty to four specifications of violation of Article 86, UCMJ (214 days AWOL) before a special court-martial convened at the USARB and was sentenced to be discharged from the service with a bad conduct discharge.  The maximum permissible sentence was a bad conduct discharge, confinement at hard labor for 6 months, forfeiture of two-thirds pay for a like period and reduction to E-1.

Prior to the court-martial proceedings a mental status evaluation found that he suffered from an inadequate personality disorder.  However, he was determined to be mentally responsible at the time of the commission of the offenses and had the requisite mental capacity to stand trial.

The record of trial reflects that a substantial portion of the testimony concerned his personality disorder and the underlying defense mechanism of fleeing stressful situations.  The court testimony, by a social worker, points out that the applicant’s personality disorder probably dated from childhood and was not amenable to treatment within the military setting.  The applicant also claimed that a back injury which Army doctors were unable or unwilling to treat, was one of the reasons why he continually went AWOL.  However, according to testimony, the back injury was never proven and, in fact, was suspected of being a psychosomatic illness.

The appellate review of his case was completed on 19 October 1979 by the US Army Court of Military Review.  Thereafter, he was separated with a bad conduct discharge in accordance with Army Regulation 635-200, chapter 11.

The Army Discharge Review Board denied his request for discharge upgrade on 17 July 1995.

Army Regulation 635-200, chapter 11, provides that a member will be given a bad conduct discharge 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.  Paragraph 11-4 of the regulation provides that dishonorable and bad conduct discharges 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.  His conviction and discharge were effected in accordance with applicable law and regulation and the character of the discharge is commensurate with his record of military service.

2.  Notwithstanding counsel’s assertion that proper weight was not afforded testimony regarding his personality disorder, the record of trial suggests otherwise.  Extensive discussion centered around his disorder, and his coping mechanisms.  These arguments may have formed the basis for the judgment to only discharge him, without sentencing him to confinement or to forfeiture of pay.

3.  The applicant’s contentions that he was offered the opportunity to stay in the Army after his court-martial, that he was offered a medical discharge and that he would not be “kicked out of the Army” if he returned to his unit, cannot be verified by evidence in the record.

4.  While the Board has taken cognizance of the applicant’s post-service conduct it is believed that such conduct is the expected norm and, in and of itself, does not warrant upgrading the discharge in this case.

5.  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




						Karl F. Schneider
						 Acting Director