| Mr. Carl W. S. Chun | Director | |
| Mr. Jessie B. Strickland | Analyst |
| Ms. Melinda M. Darby | Chairperson | |
| Mr. Roger W. Able | Member | |
| Mr. Curtis L. Greenway | Member |
APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to honorable.
APPLICANT STATES: That for his first offense, a BCD was too harsh. He goes on to state that he has been a model citizen and the BCD is hampering his ability to make a living and support his family.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted on 5 August 1974, for a period of 3 years, training as a motor transport operator and assignment to the 11th Armored Cavalry Regiment (11th ACR). He completed his training at Fort Dix, New Jersey, and was transferred to the 11th ACR in Germany on 5 December 1974. He was advanced to the pay grade of E-3 on 20 March 1975.
On 26 August 1975, nonjudicial punishment (NJP) was imposed against him for fist fighting in front of the billets, for assaulting unknown persons and for driving a military truck through four motor pool doors, causing over $1,200.00 in damage. His punishment consisted of extra duty and restriction.
He was advanced to the pay grade of E-4 on 7 April 1976 and on 16 December 1977, he reenlisted for a period 3 years and a 1-year stabilization.
On 7 August 1978, NJP was imposed against him for driving while drunk. His punishment consisted of a forfeiture of pay and extra duty.
He remained in Germany with the 11th ACR and was promoted to the pay grade of E-5 on 10 January 1980.
On 7 November 1980, he was convicted pursuant to his guilty pleas by a special court-martial of being absent without leave (AWOL) from 8 September to 10 September 1980, from 16 September to 17 September 1980, and from 22 September until he was apprehended on 15 October 1980. He was sentenced to a reduction to the pay grade of E-1 and a forfeiture of pay.
He again went AWOL from 15 November to 16 November 1980. However, the record is silent as to any punishment imposed for that offense.
On 5 June 1981, he was convicted by a general court-martial of the wrongful possession, use, transfer and selling of heroin. He plead guilty to all of the specifications and was sentenced to confinement at hard labor for 3 months, a forfeiture of pay and a BCD. The findings and sentence were approved by the convening authority on 14 July 1981 and the applicant was transferred to the United States Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his confinement.
On 28 December 1981, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
Accordingly, on 21 May 1982, he was discharged with a BCD, pursuant to a duly reviewed and affirmed general court-martial conviction. He had served 7 years, 5 months and 17 days of total active service. His awards include the national Defense Service Medal and the Good Conduct Medal.
Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.
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 type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
3. The applicant’s contentions have been noted by the Board. However, they are not supported by the evidence of record and the Board finds that they are not sufficiently mitigating to warrant relief when compared to the seriousness of his offenses and his overall undistinguished record of service.
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
__mmd__ ___rwa__ __clg____ DENY APPLICATION
| CASE ID | AR2002071877 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/08/20 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 1982/05/21 |
| DISCHARGE AUTHORITY | GCM |
| DISCHARGE REASON | CM CONV |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 685 | 144.6800/A68.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001057242C070420
EVIDENCE OF RECORD : The applicant's military records show: The record of trial was forwarded to the United States Army Court of Military Review for appellate review. No pay records were available for review.
ARMY | BCMR | CY2005 | AR20050012649C070206
Randolph Fleming | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. ______William Powers________ CHAIRPERSON INDEX |CASE ID |AR20050012649 | |SUFFIX | | |RECON | | |DATE BOARDED |20060502 | |TYPE OF DISCHARGE |(BCD) | |DATE...
ARMY | BCMR | CY2002 | 2002080134C070215
The record contains no evidence that he was ever punished for this offense. On 28 January 1987, the Army Discharge Review Board denied the applicant’s request for clemency The available records contains no medical evidence and the applicant has provided no evidence that demonstrates he suffers from an illness or an injury that was either incurred in, or aggravated as a result of his military service.
ARMY | BCMR | CY2011 | 20110010310
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. Accordingly, his punishment was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency. As a result, clemency is not warranted in this case.
ARMY | BCMR | CY2002 | 2002072184C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 17 November 1981, his commander notified him that he was considering whether he should impose NJP against the applicant for being disrespectful towards a noncommissioned officer. In accordance with Title 10, United States Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records is not empowered to set aside a conviction.
ARMY | BCMR | CY2002 | 2002071876C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: The applicant appealed his case to the United States Court of Military Appeals and his petition for a grant of review was denied on 11 December 1984.
ARMY | BCMR | CY2002 | 2002071577C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. He departed Germany on 21 July 1978, en route to Fort Campbell, Kentucky, with a report date of 24 August 1978. He failed to report as ordered and was reported as AWOL from 24 August 1978, until he was returned to military control on 7 September and charges were preferred against him for the absent without leave (AWOL) offense.
ARMY | DRB | CY2005 | 20050000823C070206
The applicant requests upgrade of his bad conduct discharge to an honorable discharge. On 21 April 1981, the military judge sentenced the applicant to reduction to pay grade E-1, forfeiture of $250.00 per month for four months, confinement at hard labor for 75 days, and to be discharged from the service with a bad conduct discharge. Therefore, there is no basis to grant clemency in the form of an honorable discharge.
ARMY | BCMR | CY2005 | 20050000823C070206
The applicant requests upgrade of his bad conduct discharge to an honorable discharge. On 21 April 1981, the military judge sentenced the applicant to reduction to pay grade E-1, forfeiture of $250.00 per month for four months, confinement at hard labor for 75 days, and to be discharged from the service with a bad conduct discharge. Therefore, there is no basis to grant clemency in the form of an honorable discharge.
ARMY | BCMR | CY2005 | 20050000823C070206
The applicant requests upgrade of his bad conduct discharge to an honorable discharge. On 21 April 1981, the military judge sentenced the applicant to reduction to pay grade E-1, forfeiture of $250.00 per month for four months, confinement at hard labor for 75 days, and to be discharged from the service with a bad conduct discharge. Therefore, there is no basis to grant clemency in the form of an honorable discharge.