| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Walter T. Morrioson | Chairperson | |
| Mr. Ronald E. Blakely | Member | |
| Mr. Joe R. Schroeder | Member |
APPLICANT REQUESTS: In effect, that his dishonorable discharge (DD) be upgraded.
APPLICANT STATES: In effect, that he enlisted for 2 years and had technically completed his service time honorably before he was convicted by a general court-martial (GCM) a week after the expiration of his term of service (ETS). He claims that he was not properly advised of his rights and was persuaded and railroaded into a court-martial.
EVIDENCE OF RECORD: The applicant's military records show:
On 30 April 1974, he enlisted in the Regular Army for 2 years. He completed basic training at Fort Polk, Louisiana and advanced individual training (AIT) at Fort Sill, Oklahoma. Upon completion of AIT he was awarded military occupational specialty (MOS) 82C (Artillery Survey Specialist) and was assigned to Fort Hood, Texas.
The applicant’s service record documents no acts of valor, significant achievement, or service warranting special recognition. However, it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions and his trial and conviction by a GCM.
On 10 September 1974, the applicant accepted NJP for failing to go to his designated place of duty and his punishment for this offense included a suspended reduction to private/E-1 and 14 days of restriction and extra duty.
On 17 December 1975, the applicant accepted NJP for failing to go to his prescribed place of duty. His punishment for this offense included a suspended reduction to private/E-2 and 7 days of extra duty. On 21 January 1976, as a result of a subsequent incident of misconduct the suspended reduction was vacated and the applicant was reduced in rank accordingly.
On 6 May 1976, the applicant was tried and found guilty by a GCM of two specifications of violating Article 130 of the UCMJ by housebreaking, two specifications of violating Article 121 of the UCMJ by committing larceny; and of violating Article 81 of the UCMJ by conspiring to commit larceny. The resultant sentence included a reduction to private/E-1; DD; total forfeiture of all pay and allowances; and confinement at hard labor for 2 years.
On 30 July 1976, the applicant’s GCM was promulgated on GCM Order Number 36, issued by Headquarters, 1st Cavalry Division, Fort Hood, Texas, and the sentence was approved by the GCM convening authority. The record of
court-martial was forwarded to The Judge Advocate General (TJAG) of the Army for review by the Army Court of Military Review. Pending completion of the appellate review the applicant was ordered confined in the United States Disciplinary Barracks, Fort Leavenworth, Kansas.
On 13 September 1976, the United States Army Court of Military Review after reviewing the record of trial affirmed the guilty findings and the sentence in the applicant’s case. This affirmation was documented in GCM Order Number 304, dated 9 March 1977, issued by Headquarters, Fort Leavenworth, Kansas and the sentence was ordered duly executed.
On 27 September 1977, the applicant was separated with a DD after completing 1 year, 11 months, and 28 days of creditable active military service, and having had accrued a total of 510 days of time lost subsequent to his normal ETS due to confinement.
Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board to only change a discharge if clemency is determined to be appropriate.
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 contentions of the applicant that he was not properly advised and railroaded into a court-martial but finds this claim lacks merit and is not sufficiently compelling to warrant clemency in this case.
2. The evidence of record clearly shows and the Board is satisfied that the applicant was afforded every legal right in connection with the GCM proceedings against him and that his trial was warranted by the gravity of the offenses for which he was charged.
3. The applicant’s GCM conviction and the resultant DD were effected in accordance with applicable law and regulations in effect at the time. Further, the DD portion of the sentence was not effected until he had been afforded all legal appeals and the findings and sentence were finally affirmed by the United States Army Court of Military Review.
4. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the punishment imposed.
5. Based on the seriousness of the offenses for which the applicant was convicted, the Board concludes that the resultant DD was an appropriate punishment and even after considering his overall record of service, the Board still concludes that clemency is not warranted in this case.
6. 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
__WTM__ __REB__ __JRS__ DENY APPLICATION
| CASE ID | AR2001052763 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2001/08/14 |
| TYPE OF DISCHARGE | DD |
| DATE OF DISCHARGE | 1977/09/27 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | GCM |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 189 | 110.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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