APPLICANT REQUESTS: That his bad conduct discharge (BCD), issued as the result of a conviction by a general court-martial, be upgraded to honorable.
APPLICANT STATES: That his trial defense counsel did not adequately represent him.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 13 April 1969 and enlisted in the Regular Army for 4 years on 20 September 1988. Following completion of the required military training, he was assigned to a unit at Fort Campbell, Kentucky, with duty as an infantryman.
On 17 June 1989, the applicant was arrested by civilian authorities on undisclosed charges and held until his acquittal on 2 March 1990. Following his acquittal, he returned to his unit at Fort Campbell.
On 4 September 1992, the applicant was apprehended by military authorities after shooting a fellow soldier with an unregistered privately-owned weapon. On 11 December 1992, the applicant was tried by a general court-martial for the offenses of attempted murder, aggravated assault, and carrying a concealed weapon. The military judge dismissed the charge of attempted murder and the applicant pleaded guilty to the two remaining charges in return for a pre-trial agreement. In accordance with his plea of guilty, he was convicted and sentenced to be reduced to private, confinement for 1 year, total forfeiture of all pay and allowances, and a BCD. In accordance with his pre-trial agreement, his sentence to confinement was reduced to 6 months.
The applicants conviction was reviewed and upheld by the Army Court of Military Review. He petitioned the Court of Military Appeals, but was not granted a review. His BCD was executed on 29 April 1994. He had 5 years, 2 months, and 15 days of creditable active service and 147 days of lost time.
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, and advisory opinion(s), 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. Trial by court-martial was warranted by the gravity of the offenses 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.
3. The applicant pleaded guilty to the charges of shooting a fellow soldier with a concealed handgun in return for a sentence to confinement not greater than 6 months.
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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