| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Raymond V. O’Connor | Chairperson | |
| Ms. Regan K. Smith | Member | |
| Mr. Donald P. Hupman, Jr. | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).
APPLICANT STATES: In effect, that he would like the Board to consider changing his discharge. He claims to have had plenty of time to get his life straight and that an upgrade of his discharge would allow him to receive veterans benefits to purchase a house and attend college.
EVIDENCE OF RECORD: The applicant's military records show:
On 19 September 1989, the applicant enlisted in the Regular Army for 5 years. He was trained in and awarded military occupational specialty (MOS) 31K (Combat Signaler) and the highest rank he attained during his active duty tenure was private first class/E-3.
The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition. However it does contain a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on
27 November 1991 for being disrespectful in language and deportment toward a noncommissioned officer (NCO). It also shows that on 14 April 1992 he was barred from reenlistment based on the incidents for which this NJP was imposed.
On 2 July 1992, the applicant was convicted by a general court-martial of striking a NCO while she was in the execution of her office; for being disrespectful to a NCO who was in the execution of her office; and for wrongfully and unlawfully making a false statement under oath. The resultant sentence included a forfeiture of $392.00 pay per month for 24 months, a reduction to the rank and pay grade of private/E-1, confinement for 2 years, and a BCD. On 25 September 1992, the convening authority approved the sentence and ordered all but the BCD portion to be executed.
On 31 March 1993, the United States Army Court of Military review found that the court erred in the court-martial proceedings by failing to announce the applicant’s guilt of charge I but it held that this error was harmless and affirmed the findings and sentence. On 12 July 1993, the United States Court of Military Appeals denied the applicant’s petition to review the decision of the United States Army Court of Review and general court-martial order number 56, dated 12 August 1993, issued by Headquarters, 4th Infantry Division, Fort Carson, Colorado, directed based on the findings and sentence having been finally affirmed that the BCD portion of the sentence be executed.
Accordingly, on 30 November 1993 the applicant was separated after completing 2 years, 9 months, and 13 days of creditable active military service and having accrued a total of 1 year, 4 months, and 28 days of time lost due to confinement.
The Manual for Courts-Martial Table of Maximum Punishments, in effect at the time, provided that the maximum punishment the applicant could have received based on his conviction was 8 years confinement, total forfeiture of pay, reduction to the rank of private (E-1), and a BCD or dishonorable discharge.
Title 10 of the United States Code, section 1552 as amended does not permit any redress by the Army Board of Correction of Military Records (ABCMR) of the finality of a court-martial conviction and empowers the ABCMR 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 notes the applicant’s contention that he has had time to get his life straight and now desires to receive veterans education and home loan benefits to better care for his family. However, it finds that these factors alone do not provide a sufficient basis for an upgrade of his discharge.
2. 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.
4. The evidence of record confirms that the applicant’s conviction and discharge were effected in accordance with applicable law and regulations in effect at the time and that his trial by court-martial was warranted by the gravity of the offenses with which he was charged.
5. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, it finds there is an insufficient basis to grant clemency 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
__RVO__ ___RKS__ __DPH__ DENY APPLICATION
| CASE ID | AR2001059622 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2001/10/16 |
| TYPE OF DISCHARGE | (BCD,) |
| DATE OF DISCHARGE | 19931130 |
| DISCHARGE AUTHORITY | AR 635-200, Chapter 3. . . . . |
| DISCHARGE REASON | Court-Martial |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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