| Mr. Carl W. S. Chun | Director | |
| Mr. W. W. Osborn. Jr. | Analyst |
| Ms. Irene N. Wheelwright | Chairperson | |
| Mr. Walter T. Morrison | Member | |
| Mr. Charles Gainor | Member |
APPLICANT REQUESTS: Upgrade of his bad conduct discharge (BCD) to general.
APPLICANT STATES: That the sentence was too harsh, that he was convicted of a minor offense and that his overall record was not considered in characterizing his discharge. His awards, schools, promotions and accomplishments warrant a better discharge. The offense was not serious enough to warrant a BCD because he did not use force or violence, cause any bodily injury, abuse his position of trust or endanger the security of the nation or the welfare and safety of others. In effect, the BCD stigmatizes him and keeps him from realizing his aspirations.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted and entered active duty on 16 September 1986. He completed training as an infantryman and was assigned to Fort Ord, California. He was advanced to pay grade E-4 on 1 October 1987 and was awarded the Army Achievement Medal for meritorious achievement during the period 1 May to 31 October 1987. He was reduced to private first class on 9 January 1989.
A general court-martial, convened on 12 June 1989 to try the applicant for two specifications of buying stolen property, a video cassette recorder worth about $849.00 and two car stereo radios worth a total of about $590.00 and one specification of larceny of the video cassette recorder, all property from the Army Air Force Exchange Services.
The court-martial panel, consisting of officer and enlisted members, considered evidence including the applicant's sworn statement made to a Federal Police Investigator to the effect that, about 13 January 1989, he had met an unidentified blond haired individual in the audio section of the Post Exchange. This individual offered to get him a car radio for $100.00 to $200.00. The applicant said he wanted nothing to do with stolen property. The blond haired man said he had a relative who worked in the store and not to worry about it. They met the next day outside the Exchange. The applicant gave him $150.00. The blond man entered the Exchange and returned in approximately 20 minutes with two sacks. There was a car stereo in each. The applicant kept the radios a few days, but then needed money so he sold the radios to two sergeants for $150.00 each. Later, he went to the exchange to buy his wife a gift and he encountered the same individual who offered to sell him the video cassette recorder for $500.00. The applicant said he only had $100.00, so the guy sold him the video cassette recorder for that. He could not give it to his wife, because he could not explain
how he bought an almost $900.00 item for only $100.00. So, he thought to return it to the Post Exchange and exchange it for a less expensive one. He asked a fellow soldier to return it for him because he had some other errands to run. The people at the Exchange kept the video cassette recorder.
On 29 July 1989 the court-martial panel found him guilty of the two specifications and the charge of buying stolen property and not guilty of larceny.
In deciding the sentence, the members of the court-martial panel considered the applicant's entire military record, including his advancement to pay grade E-4, his award of the Army Achievement Medal and his subsequent reduction in rank by nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for using cocaine and marijuana. They also considered the testimony of several noncommissioned officers who indicated that the applicant was hard working, professional and dedicated and that despite his recent indiscipline they would be pleased to have him in their units. The sentence, adjudged on 29 June 1989, consisted of reduction to pay grade E-1 and a bad conduct discharge.
The convening authority approved the findings and sentence as adjudged. The applicant was placed on appellate leave on 8 September 1989.
On 19 June 1990 the Army Court of Military Review affirmed the findings and sentence. The applicant did not petition the Court of Military appeals within the allowed 60-day period. On 30 August 1990, Article 71c, Uniform Code of Military Justice having been complied with, the general court-martial convening authority ordered the BCD executed.
The applicant was discharged on 4 October 1990.
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 were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which the applicant was convicted.
2. The applicant's contentions relate to evidentiary and procedural matters which were finally and conclusively adjudicated in the court-martial appellate process, and furnish no basis for re-characterization of the discharge.
3. There is no available evidence to show that the BCD has precluded the applicant from achieving his aspirations or that it is unjust if it does so.
4. 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 this requirement.
5. 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
__INW___ __WTM_ __CG ___ DENY APPLICATION
| CASE ID | AR2002069233 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20021003 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 4 October 1990 |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | NC |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105.01 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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