MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 18 March 1998
DOCKET NUMBER: AC97-10638
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:
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.
APPLICANT STATES: The applicant has submitted a letter attesting to his good character for the past seven years, from a member of the Veterans Review Board of Detroit, Michigan. Additionally, enclosed with his application is a letter dated 14 July 1982, from the applicants cousin, a master sergeant on active duty at the time, indicating his willingness to be a restoration sponsor for the applicant in the event he was restored to active duty.
EVIDENCE OF RECORD: The applicant's military records show:
On 27 August 1980 the applicant entered the Regular Army for a period of 4 years at age 17. He successfully completed One Station Unit Training (OSUT) at Fort Jackson, South Carolina. Upon completion of OSUT he was awarded military occupation specialty (MOS) 63B (Wheel Vehicle Mechanic) and assigned to an overseas tour of duty in Germany.
The applicants record is void of information on any specific acts of achievement, valor or service warranting special recognition or commendation. However, there is documented evidence of a record of disciplinary infractions.
On 22 January 1982 the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ. The NJP was for violation of Article 134 in that the applicant on 20 January 1982 having been restricted to his room broke said restriction. His punishment for this offense was forfeiture of $200.00 a month for 2 months and restriction for 45 days.
On 3 May 1982 the applicant was tried by general court-martial for three charges, containing a total of eight specifications, in violation of Articles 91, 128, and 134 of the UCMJ. He was found guilty of portions of all charges and specifications except one. His resultant sentence included: confinement at hard labor for a period of 2 years; and to be discharged from the service with a bad conduct discharge.
The court-martial was promulgated and the sentence approved in General Court-Martial Order Number 28, Department of the Army, Headquarters, V Corps, APO NY 09079, dated 28 July 1982 which ordered the applicant be confined in the US Disciplinary Barracks at Fort Leavenworth, Kansas pending completion of the appellate review. General Court Martial Order Number 324, Headquarters, Fort Leavenworth, Kansas dated 27 April 1984 affirmed, the court martial with the following modification: so much of the convening authoritys action as purports to apply forfeitures to allowances is void as a matter of law and is set aside; and directed the modified sentence be duly executed.
Accordingly, on 20 October 1970 the applicant was issued a bad conduct discharge after completing 2 years, 1 month, and 24 days of active military service and accruing 554 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. 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 Board takes cognizance of the applicant's post service good conduct as attested to in the character reference provided. However, the Board did not find this factor sufficiently mitigating to warrant the relief requested.
3. 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.
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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