APPLICANT REQUESTS: In effect, that his dishonorable discharge be upgraded to honorable.
APPLICANT STATES: That he was provided with no legal assistance. Therefore, the military discharged him without due process or allowing him to provide evidence in his own behalf. Further, he had no input regarding the type of court-martial he received or the type of discharge he received on his release.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in the Regular Army for 3 years on 26 December 1951 and was dishonorably discharged pursuant to the sentence of a general court-martial on 26 June 1955. During his service, he received nonjudicial punishment on four occasions for AWOL, was convicted by a general court-martial of robbery and a summary court-martial for AWOL. His final conviction, by general court-martial, resulted in his dishonorable discharge for wrongful appropriation of a government vehicle.
The record of trial shows that he had an appointed defense counsel prior to and during the court-martial proceedings. He pleaded guilty to the charges against him which subjected him to a finding of guilty without further proof. During the proceedings, the law officer advised him that he had the right to plead not guilty. He indicated that he understood his rights but chose to plead guilty to the offense charged.
He was found guilty and sentenced to a dishonorable discharge, confinement at hard labor for 1 year and total forfeiture of pay and allowances.
On 29 September 1954 he executed a statement indicating that he did not desire to be represented by appellate defense counsel before the board of review. On 23 November 1954 the board affirmed his sentence. On that same date, after consultation with counsel, he signed a request for final action stating that he did not desire to file a petition with the Court of Military Appeals for review of his sentence.
This Board denied his request to upgrade his discharge on 25 March 1977 and 24 January 1979.
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 effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
2. His contention that he had no say in the type of court-martial or discharge that he received is correct. However, neither of these matters are generally within the accuseds province to decide. The seriousness of the offense and the determination of the court, acting within certain guidelines, decides the type of court-martial and the sentence adjudged.
3. The applicant's allegation regarding violation of rights is unsupported by the evidence of record. The record shows that the he was provided with legal counsel at each step of the proceeding. Further, it appears that he persisted in pleading guilty to the charges against him, thereby abrogating his opportunity to present evidence in his own behalf, that he now says he never had the chance to submit.
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
Karl F. Schneider
Acting Director
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