| Mr. | Calvin M. Fowler | Chairperson | |
| Mr. | Fred N. Eichorn | Member | |
| Mr. | Raymond V. O’Connor Jr. | Member |
| Mr. | Loren G. Harrell | Director | |
| Mr. | Joseph A. Adriance | Analyst |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to a general/under honorable conditions discharge (GD).
APPLICANT STATES: In effect, that he wants to be able to use a Veteran’s Hospital for medical care.
EVIDENCE OF RECORD: The applicant's military records show:
On 13 November 1967 the applicant entered the Regular Army for
3 years at the age of 17. He successfully completed basic training at Fort Knox, Kentucky, advanced individual training (AIT) at Fort Lee, Virginia, and the basic airborne course at Fort Benning, Georgia. Upon completion of training he was awarded military occupational specialty (MOS) 76W (Fuel Handling Specialist) with the additional skill identifier of P (Parachutist), and was assigned to Fort Bragg, North Carolina for his first permanent duty station.
The applicant’s record indicates that the highest rank he held on active duty was private first class/E-3. The record documents no specific acts of valor, achievement, or service warranting special recognition; however, it does contain an extensive disciplinary history including: the applicant’s acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on four separate occasions; and his trial by general court-martial which ultimately resulted in his discharge.
On 19 June 1968 the applicant accepted an NJP for failing to go to his prescribed place of duty on 12 June 1968. His punishment for this offense was reduction to private/E-2; forfeiture of $45.00; and 14 days of restriction and extra duty.
On 15 July 1968 the applicant accepted his second NJP for missing a manifest call for a parachute jump and breaking restriction. The resultant punishment included a reduction to private/E-1; forfeiture of $24.00; and 14 days of restriction and extra duty.
On 2 August 1968 the applicant accepted his third NJP for being AWOL between 30 and 31 July 1968. His punishment for this offense was a forfeiture of $25.00 and 14 days of extra duty.
On 7 August 1968 the applicant accepted his last NJP for failing to go to his prescribed place of duty and for appearing in an improper and unclean uniform. His punishment was 14 days of restriction and extra duty.
On 31 March 1971 the applicant was tried by general court-martial for violation of Article 86 of the UCMJ for being AWOL from 12 August 1968 to 23 November 1970 and was found guilty of the charge. The resultant sentence included a discharge from the Army with a BCD; a forfeiture of all pay and allowances ; and confinement at hard labor for six months.
The court-martial was promulgated in General Court-Martial Order (GCMO) Number 68, Department of the Army, Headquarters, United States Army Training Center, Infantry and Fort Ord, California 93941, dated 23 April 1971; and modified in GCMO 78 dated 21 May 1971 issued by the same headquarters. The sentence modification consisted of a suspension of the unexecuted portion of the confinement at hard labor for four months, with provisions for an automatic remission, and a deferment of the forfeiture until such time as the sentence was ordered into execution, unless the deferment was sooner rescinded.
On 3 July 1971 the applicant absented himself from the Personnel Control facility at Fort Ord, California and was dropped from the rolls as a deserter on 2 August 1971.
On 10 September 1971 the United States Army Court of Military Review (ACMR) affirmed the applicant’s court-martial sentence and on 28 September 1971 there was an unsuccessful attempt to serve a copy of the ACMR decision to the applicant. The court-martial with modifications was finally affirmed in GCMO Number 134, Headquarters, U.S. Army Training Center, Infantry, and Fort Ord, California 93941, dated 1 November 1971. The order stated that the
court-martial sentence would be duly executed based on the provisions of
Article 71 ( c ) having been accomplished, and the fact that the applicant still remained in an AWOL status beyond the 30 days allowed for appeal.
Accordingly, on 1 November 1971 the applicant was discharged with a BCD after completing 9 months of active military service, and accruing 1092 days of time lost due to AWOL and confinement.
On 6 January 1982 the Chief of the Appeals Branch of the United States Army Military Personnel Center, Alexandria, Virginia forwarded a letter to the applicant advising him that he had been discharged effective 1 November 1971. The letter included the applicant’s discharge certificate and a request form that the applicant could use to obtain his DD Form 214 (Certificate of Release or Discharge from the Active Army).
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 noted the applicant’s desire to obtain medical care from a Veteran’s medical care facility. However, determined this issue provides an insufficient basis for clemency.
2. Trial by court-martial was warranted based on the applicant’s gravity of the offense 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.
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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