APPLICANT REQUESTS: That his general court-martial conviction be set aside and that his bad conduct discharge (BCD) be upgraded to honorable or, in effect, general.
APPLICANT STATES: In effect, that he was denied a fair and speedy trial; that trial counsel and the military judge erred during his trial; that he received an inadequate defense from his defense counsel; and that he had a substance abuse problem which was known to his command, but not addressed through counseling or therapy.
EVIDENCE OF RECORD: The applicant's military records show:
That he served on active duty from his enlistment on 8 July 1966 until separated with a BCD on 9 March 1971. Following completion of all required training, he served in Vietnam as an ammunition bearer from approximately 3 April 1967 to 30 October 1967. He then received an intra-theater transfer and served in Korea from approximately 8 November 1967 to 28 May 1968. While in Vietnam, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for misconduct (2 days absence without leave, or AWOL) and was reduced from the rank of Specialist (E-4) to Private First Class (E-3) and made to forfeit $45. During his Vietnam tour, he was awarded the Vietnam Service Medal, Vietnam Campaign Medal, and Combat Infantryman Badge.
Following his return to the United States from Korea, the applicant was assigned as cadre in a basic training unit at Fort Dix, New Jersey. While at Fort Dix, he complained to medical personnel of headaches and, on 24 October 1968, was prescribed a 30 day supply of valium with instructions to take three 10 mg tablets per day.
During the day on 2 November 1968, the applicant stated that he took 10-12 valium tablets (three to four times the prescribed dosage) and also consumed approximately a pint of scotch whiskey. That night, he allegedly entered the barracks room of a trainee who was awaiting a medical discharge, physically subdued him, kissed him, and anally sodomized him. He was apprehended and placed in pre-trial confinement pending trial by general court-martial.
The applicant was tried on 30-31 January 1969 and pleaded not guilty to charges of sodomy, assault with intent to commit sodomy, and failure to obey an order not to introduce alcohol into the unit area. At trial, the victim positively identified the applicant as the person who assaulted him and stated that he [the applicant] had been drinking and had offered him [the victim] alcohol. The applicant stated that he could not remember anything relating to the alleged assault as he had taken too many valiums and had been drinking prior to the incident.
Contrary to his pleas, the applicant was convicted of all charges and sentenced to confinement at hard labor for 5 years, forfeiture of $50 per month for 5 years, and a BCD. The convening authority approved the sentence, but reduced the amount of hard labor and forfeitures to 2 years. The applicant was transferred to the United States Disciplinary Barracks, Fort Leavenworth, Kansas, to serve his sentence.
The applicants conviction was reviewed by the Court of Military Review which, on 3 October 1969, affirmed the guilty verdicts for the charges of sodomy and assault with intent to commit sodomy, but set aside the guilty verdict for the charge of failure to obey an order not to introduce alcohol into the unit area and ordered that the applicant be given a rehearing on the sentence. On 7 January 1970, the rehearing was conducted and the applicant was sentenced to confinement at hard labor for 1 year and a BCD. He was separated with a BCD on 9 March 1971. He had 3 years, 5 months, and 9 days of creditable service and 473 days of lost time due to AWOL and confinement.
In 1976, the applicant petitioned this Board seeking an upgrade in his discharge. That application and two subsequent applications submitted in 1985 and 1987 were denied.
The Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial
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. The applicant has not demonstrated, and the record does not support, that he had a substance abuse or mental illness problem. The only reference to any form of substance abuse in the record is the applicants own admission in his Record of Trial that he took too many valium tablets on the day he committed the offenses. As for his state of mind, competent medical authority found him to be free of mental disease or defect.
3. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in a timely manner and in accordance with applicable law and regulations. The discharge appropriately characterizes the misconduct for which the applicant was convicted.
4. The applicant's unspecified contentions concerning judicial error and prosecutorial misconduct relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for recharacterization of the discharge.
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
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