APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to an honorable discharge.
APPLICANT STATES: That his BCD was unfair because his family problems, drug and alcohol abuse, his age and his otherwise good record in the Army were not taken into account.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army at age 17 for 3 years on 29 December 1976 and was discharged with a BCD on 29 May 1979 pursuant to the sentence of a special court-martial. Of his 2 years, 2 months and 19 days total service he spent 100 days in confinement and 345 days on excess leave awaiting review of his sentence and discharge.
Following enlistment and training as an Armor Reconnaissance specialist, he was reassigned to Germany in accordance with his enlistment option. On 15 July 1977 he was mandatorily referred for alcohol and drug abuse counseling and upon recommendation of a counselor was extended in the program an additional 30 days. During the period of his extension, he returned to the States due to an injury to his father. While in the States, he was arrested on drug related charges and upon his return to Germany, his counselor recommended that he be declared a rehabilitate failure. Accordingly, separation proceedings were initiated by his commander to discharge him from the service as a rehabilitate failure.
On 20 November 1977 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for disrespect to a commissioned officer. And, on 23 March 1978, before a special court-martial, he pleaded not guilty to possessing hashish and communicating a threat to his commanding officer. He was found guilty as charged and sentenced to a BCD, confinement at hard labor for 4 months and forfeiture of $100.00 per month for 6 months.
Review of his case by the Court of Military Review and the Court of Military Appeals resulted in affirmation of the findings and sentence.
The Army Discharge Review Board denied his request for upgrade of his discharge on 24 September 1981.
Army Regulation 635-200, 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 offenses charged. Conviction and discharge were accomplished in accordance with applicable law and regulations.
2. His statement that he was young, and presumably immature, during his service is not sufficiently mitigating to warrant relief. It is noted that he was provided with the opportunity to overcome his substance abuse problem, but chose to ignore that help.
3. Insofar as family problems were concerned, there is no evidence in the record that he ever made such problems known to authorities or otherwise sought assistance in their resolution.
4. Careful consideration has been given to the applicants overall record of service during his relatively short period of active duty. However, an NJP and conviction by a special court-martial rendered his service too undistinguished to support upgrading his discharge on that basis.
5. In view of the foregoing, there appears to be no basis for granting the applicants 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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