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Decision Text

ARMY | BCMR | CY1997 | 9710192
Original file (9710192.rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, reconsideration of his request for an upgrade of his bad conduct discharge (dismissal from service as a result of trial by general court-martial) which this Board denied on 20 April 1978. The Memorandum of Consideration is not available and the case is reviewed de novo.
APPLICANT STATES : In effect, that he be provided clemency in order to obtain good employment and provide better support for his family.

COUNSEL CONTENDS : In effect, that consideration be given to the fact the applicant has turned his life around and has become a productive member of society,

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

The applicant was inducted into the Army on 11 July 1966 for a period of 2 years. He successfully completed basic training at Fort Campbell, Kentucky and advanced individual
training at Fort Rucker, Alabama at which time he was awarded military occupational specialty (MOS) 91A (Medical Corpsman). He remained at Fort Rucker for his first permanent duty assignment.

Other than being awarded the National Defense Service Medal and the Vietnam Service Medal the applicant’s record is void of any significant acts of achievement, valor, or service warranting special recognition or commendation.

The evidence of record does document a history of disciplinary problems beginning with nonjudicial punishment (NJP),under Article 15 of the UCMJ, which the applicant accepted on 29 June 1967. This NJP was based on the applicant going from his appointed place of duty without authority and wrongfully appearing at his duty station in an improper and unclean uniform. The applicant’s punishment for these offenses was reduction to the grade of private
/E-2.

On 10 July 1967 the applicant accepted another NJP for being AWOL from his unit between 5 and 6 July 1967 for which he was required to forfeit $40 for one month.

The applicant began a tour of duty in Vietnam in November of 1967 and was reclassified into MOS 11B (Light Weapons Infantryman) on 19 December 1967.

On 20 December 1967 the applicant accepted his third NJP for leaving his post as a bunker guard without authority and spending one hour in the medical platoon’s billets consuming alcoholic beverages until ordered to return to his post. For this the applicant was reduced from private first class/E-3 to private/E-2 and forfeited $10.

On 24 May 1968 the applicant was tried by general court-martial for two violations of the UCMJ. The first for violation of Article 90 by willfully disobeying a lawful command from a superior officer to move out with his unit. The second for violation of Article 89, for being disrespectful in language to his superior officer. The applicant pleaded guilty and the general court-martial board rendered a finding of guilty to all charges and specifications. The applicant was sentenced to be discharged from the service with a bad conduct discharge, to forfeit all pay and allowances, to be confined at hard labor for one year, and to be reduced to private/E-1.

On 1 July 1968 the appropriate authority approved the sentence and directed the applicant be confined at the disciplinary barracks , Fort Leavenworth, Kansas pending the appellate review and on 29 October 1968 the appellate Board affirmed the findings and sentence.

Accordingly, on 6 January 1969 the applicant was discharged after completing 1 year, 10 months, and 14 days of active military service and having accrued 1 day of time lost due to AWOL, 46 days due to confinement, and 180 days due to confinement after his expiration of term of service (ETS).

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. 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. The Board considered the applicant's successful transition to civilian life, the supporting character references, and the recommendation of counsel. However, in review of the applicant’s entire service record, including the seriousness of the charges for which he was court-martialed, the Board determined the applicant’s post service conduct and desire to enhance his employment opportunities was not sufficiently mitigating to warrant clemency.

3. The trial by court-martial was warranted based on the gravity of the offenses for which the applicant was charged. The 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.

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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