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Decision Text

ARMY | BCMR | CY1997 | 9711452
Original file (9711452.rtf) Auto-classification: Denied
APPLICANT REQUESTS: That his bad conduct discharge be upgraded to a general discharge.
APPLICANT STATES : He states, in effect, that he does not deny the charges against him nor does he disagree with the penalties imposed, with the exception of the discharge. Since his discharge he has tried to live a good life. He has raised a family, earned an Associates Degree in Biblical studies and is working on a Bachelors Degree. He intends to work as an educator and would appreciate knowing that this mark was no longer on his record.

 EVIDENCE OF RECORD : The applicant’s military records show that he was born on 21 November 1950. He completed 8 years of formal education. He was inducted on 12 June 1970 for 2 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 71B (Clerk Typist). He was honorably discharged on 16 May 1971 for the purpose of immediately reenlisting on 17 May 1971 for 3 years.

On 28 July 1971, the applicant was convicted by a special court-martial for stealing and unlawfully opening mail. He was sentenced to confinement at hard labor for 4 months, to forfeit $50 pay for 4 months, to be reduced to pay grade E-1 and to a bad conduct discharge.

The applicant was in confinement from 28 July - 4 November 1971.

On 10 November 1971, the U.S. Army Court of Military Review held that the findings of guilty of stealing mail could not be affirmed but did affirm the findings of guilty of opening mail. Only the bad conduct discharge portion of the sentence was affirmed.

The applicant completed a separation physical and was found qualified for separation.

The applicant was absent without leave (AWOL) from 3 - 25 January 1972.

On 25 January 1972, while still AWOL, the applicant was discharged, in pay grade E-1, with a bad conduct discharge pursuant to his court-martial sentence. He had completed 1 year, 3 months and 14 days of creditable active service and had 123 days of lost time.

Title 10, U.S. 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, it is concluded:

1. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge, as affirmed, were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which the applicant was convicted.

2. Although the Board takes cognizance of the applicant’s good post-service conduct, this factor does not warrant the relief requested and it would not be appropriate to change the records to show that the applicant was discharged with other than a bad conduct discharge.

3. In view of the foregoing, there appears to be 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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