APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to a general discharge.
APPLICANT STATES: In effect, that consideration should be given to the fact that he served 5 years of military service; that he served in Vietnam for 2 1/2 years and that he received the Bronze Star Medal and many other awards.
EVIDENCE OF RECORD: The applicant's military records show:
He was born on 20 December 1949. He completed 10 years of formal education. On 7 June 1971, the applicant enlisted in the Regular Army for 6 years with 3 years, 1 month and
4 days of prior active service. His military occupational specialty was 57A10 (Duty Soldier). The highest grade he achieved was pay grade E-2.
On 3 June 1971, the applicant accepted nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for failure to repair. His imposed punishment was 14 days restriction.
On 15 October 1971, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from
15 September to 12 October 1971. He was sentenced to a forfeiture of $100 pay and a reduction to pay grade E-1.
Between 18 July and 3 November 1972, the applicant accepted four NJPs, under Article 15, UCMJ, for two specifications of leaving his appointed place of duty without proper authority, for being AWOL from 31 October to 3 November 1972, for disobeying a lawful order and for dereliction of duty. His punishment included forfeitures, restrictions and extra duties.
The applicants military records also indicates that court-martial charges were preferred against the applicant for the possession of heroin. However, the particulars are missing from his file.
On 12 January 1973, the applicant was convicted by a special court-martial of two specifications of assault, for wrongfully communicating a threat and for being AWOL from
11 to 15 December 1972. He was sentenced to a forfeiture of $100 pay per month for 4 months, confinement at hard labor for 4 months and to be discharged from the service with a BCD. On 26 January 1973, the convening authority approved the sentenced and forwarded the record of trial to the Judge Advocate General of the Army for review by a board of review.
On 20 February 1973, the United States Army Court of Military Review, affirmed the findings of guilty and the sentence. The applicants record does not indicate that he petitioned the United States Court of Military Appeals for a grant of review.
On 17 April 1973, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial, under other than honorable conditions with a BCD certificate. He had completed 1 year, 8 months and 4 days of active service during this enlistment. He was awarded the Bronze Star Medal, the Army Commendation Medal, the National Defense Service Medal, the Vietnam Service Medal and the Vietnam Campaign Medal.
Title 10, United States Code, section 1552, as amended, precludes any action by this Board which would disturb the finality of a court-martial conviction.
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 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.
3. The applicant has submitted neither probative evidence nor a convincing argument in support of his allegation or request.
4. Therefore, in view of the foregoing, there is 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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