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ARMY | BCMR | CY1997 | 9705305
Original file (9705305.rtf) Auto-classification: Denied
MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:  BOARD DATE: 8 April 1998
          DOCKET NUMBER: AC97-05305

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. The following members, a quorum, were present:
Ms. Joann H. Langston Chairperson
Mr. George D. Paxson Member
Mr. James M. Alward Member

         Also present, without vote, were:
Mr. Loren G. Harrell Director
Mr. Jospeh A. Adriance Analyst

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.
         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
         The applicant requests correction of military records as stated in the application to the Board and as restated herein.
         The Board considered the following evidence:
         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS

: In effect, that his bad conduct discharge (BCD) be upgraded to honorable discharge (HD).
APPLICANT STATES : In effect, that he had insufficient counsel and the charges were erroneous and incorrect.

 COUNSEL CONTENDS : The applicant’s counsel has submitted no additional contentions for consideration in this case.

 EVIDENCE OF RECORD : The applicant's military records show:

On 28 March 1986 the applicant extended his period of service for 29 months while at Fort Eustis, Virginia. His initial
3 year enlistment began on 20 July 1982 and he had already extended his period of service for 9 months on 9 July 1985. At the time of his last extension the applicant had already served 3 years, 8 months, and 8 days of honorable service; held military occupation specialty (MOS) 76Y (Supply Specialist); attained the rank of specialist/E-4; and earned the Good Conduct Medal and Army Service Ribbon.

The applicant’s record contains no other significant acts of valor, achievement, or service warranting special recognition. However, there is a history of documented disciplinary infractions beginning on 1 September 1984 and continuing until he was tried by special court-martial on
16 June 1986.

On 26 September 1984 the applicant was reprimanded in writing by his unit commander for failing to obey a lawful order issued by a military policeman in the execution of his duties. The military policeman was responding to a domestic disturbance at the applicant’s quarter.

On 9 October 1984 the applicant’s battalion commander issued the applicant a written reprimand for his failure to operate his vehicle in compliance with state and local laws. The letter was written in response to the applicant having had been cited for three speeding violations in one year.

 On 8 April 1986 the applicant accepted a field grade nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for violation of Article 134, for taking money to enter an incorrect weight on an Army Physical Readiness Test (APRT) form of another soldier and instructing the training clerk to make the false entry. His resultant punishment for this offense included reduction to private/E-2; forfeiture of $350.00 per month for two months; and restriction and extra duty for 45 days. The applicant having been advised of his rights did not demand trial by court-martial and refused to sign the NJP.
On 16 June 1986 the applicant was tried by special court-martial for four charges with a total of five specifications. Charge I was for violation of Article 89 of the UCMJ for disrespect toward a superior commissioned officer; Charge II was for violation of Article 90 for willfully disobeying a superior commissioned officer; Charge III was for violation of Article 95 for resisting apprehension; and Charge IV was for two specifications of violation of Article 95 for assault. The applicant was found guilty of all specifications of Charges I and IV and not guilty of Charges II and III.

The resultant sentence was reduction in grade to
private/E-1; confinement for 3 months; and to receive a BCD. The convening authority agreed, under the terms of a pretrial agreement concerning the sentence, to disapprove the portion of the sentence in excess of a BCD; confinement for two months; reduction to E-1; and reprimand.

The Special court-martial was promulgated in Special Court Martial Order Number 30, Headquarters, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia 23604, dated 8 October 1986. Special Court-Martial Order Number 13, Department of the Army, Headquarters, U.S. Army Transportation Center and Fort Eustis, Fort Eustis, Virginia 23604, dated 27 August 1987, finally affirmed the court-martial and directed the BCD be executed.

Accordingly, on 29 September 1987 the applicant was discharged after completing 5 years, 1 month, and 2 days of active military service and accruing 90 days of time lost due to confinement.

 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. The Board determined that the trial by court-martial was warranted based on the gravity of the offenses with which the applicant was 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. The applicant's contentions referring to the court-martial charges being incorrect, and that he had insufficient counsel are not supported by the evidence of record, or by independent evidence submitted by the applicant. However, the evidence of record does indicates the BCD portion of the sentence was the result of a pre-trail sentencing agreement between the applicant and the convening authority. The applicant’s contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for clemency or a recharacterization of the discharge.

3. Title 10, United States Code, section 1552, as amended does not permit any redress by this Board which would disturb the finality of a court-martial conviction.

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




                                                      Loren G. Harrell
                                                       Director

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