| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Ms. Margaret K. Patterson | Member | ||
| Mr. Arthur A. Omartian | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).
APPLICANT STATES: In effect, that his commander denied him the opportunity to attend a substance abuse treatment program, which led to the court-martial charges for which he received a BCD. He states that he is still being punished for the BCD 12 years later, and wonders how long he has to suffer for his mistake. He states that an upgrade of his discharge will enhance his ability to gain employment, which would allow him to move out of the homeless situation he is in. He concludes by stating that he is sorry for his actions that led to his BCD, and hopes that he can receive an honorable or general discharge so that he can at least get a job.
EVIDENCE OF RECORD: The applicant's military records show:
On 8 June 1981, the applicant initially entered the Regular Army for 4 years. He extended his term of enlistment on 10 July 1984 for 17 months and again on
5 November 1986 for 30 months. He was trained and served in military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic), and the highest rank he attained while serving on active duty was specialist/E-4. During his active duty tenure, the applicant earned the following awards: Army Service Ribbon, Army Good Conduct Medal (2nd Award), and Army Achievement Medal.
The applicant’s record contains an extensive disciplinary history that includes his acceptance of non-judicial punishment (NJP) on the following three occasions for the offenses indicated: 10 August 1987, for being absent without leave (AWOL) on 31 July 1987; 18 November 1987, for being AWOL on 28 October 1987 and
30 October 1987; and 22 December 1987, for being AWOL from 8 to
10 December 1987 and 16 to 21 December 1987, failure to go to his appointed place of duty on 12 December 1987 and 13 December 1987, and AWOL on
15 December 1987.
On 8 December 1987, the applicant’s unit commander initiated a bar to reenlistment against him, citing the applicant’s record of non-judicial punishment (NJP) for misconduct and his record of counseling for his history of failing to report to duty and for departing his place of duty without his supervisor’s approval. The commander also stated that in August 1987, the applicant was a self-referral to the Alcohol and Drug Abuse Prevention Control Program (ADAPCP), after admitting to using drugs for over 6 years, and in November 1987, while enrolled in the ADAPCP, he tested positive for cocaine and marijuana on a command directed urinalysis test. The applicant acknowledged receipt of the bar to reenlistment and his understanding of the basis for the action. On 4 January 1988, the bar to reenlistment was approved by the appropriate authority.
On 13 April 1988, the applicant was convicted by a general court-martial of one specification of AWOL, five specifications of wrongful use of cocaine, two specifications of wrongful distribution of cocaine, and three specifications each of housebreaking and larceny. The convening authority approved the sentence of a BCD, confinement for two years, forfeiture of $300.00 pay per month for two years, and a fine of $2,000.00.
On 25 October 1988, the United States Army Court of Military Review examined the record of trial and found it to be legally sufficient and it affirmed the guilty findings and the sentence of a BCD, confinement for 2 years, forfeiture of $300.00 pay per month for two years, and a fine of $2,000.00.
Pursuant to General Court Martial Order Number 335, dated 3 April 1989, issued by Headquarters, United States Army Correctional Activity, Fort Riley, Kansas, the applicant’s sentence was finally affirmed and the BCD portion was ordered to be executed. On 5 May 1989, the applicant was discharged accordingly after completing a total of 6 years, 7 months, and 9 days of creditable active military service and having accrued 484 days of time lost due to AWOL and confinement.
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 his commander denying him entrance to the substance abuse treatment program was a mitigating factor in the misconduct that ultimately resulted in his discharge. However, the Board finds this claims lacks merit. The evidence of record confirms that the applicant was afforded the opportunity to receive substance abuse treatment as indicated by his self-referral to ADAPCP.
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.
3. 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.
4. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge received by the applicant appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of service. Therefore, the Board concludes that clemency is not warranted in this case.
5. 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.
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__ __MKP _ __AAO __ DENY APPLICATION
| CASE ID | AR2002074041 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/10/01 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 19890505 |
| DISCHARGE AUTHORITY | AR 635-200. . . . . |
| DISCHARGE REASON | Result of CM |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.680 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2009 | 20090004264
The applicant states many of the charges in his first general court-martial were contrived and assisted by his ex-wife's father, who served as a GS-13 on the staff of the Department of the Army Inspector General (DAIG). On 7 June 1988, the General Court-Martial Convening Authority (GCMCA) approved the sentence of forfeiture of two-thirds pay per month while not confined until the dismissal is executed, and the remainder of the sentence. On 7 January 1989, the U.S. Army Court of Military...
ARMY | BCMR | CY2009 | 20090009098
The applicant requests that his bad conduct discharge be upgraded to an honorable discharge. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.
ARMY | BCMR | CY2002 | 2002073657C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 30 August 1987, the convening authority approved the sentence and ordered all but the DD portion to be executed. 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:
ARMY | BCMR | CY2010 | 20100030429
On 11 August 1983, upon consideration of the entire record, the U.S. Army Court of Military Review affirmed the findings of guilty and sentence as approved. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged on 22 December 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 3, section IV, with a bad conduct discharge. When authorized, it is issued to a Soldier whose military record...
ARMY | BCMR | CY2002 | 2002068550C070402
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: 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:
ARMY | BCMR | CY2011 | 20110017791
Application for correction of military records (with supporting documents provided, if any). This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. His conviction and discharge were effected in accordance with applicable law and regulations and his discharge appropriately characterizes the...
ARMY | BCMR | CY2011 | 20110022989
This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. His DD Form 214 shows he was discharged on 25 February 1988 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 3 as the result of court-martial. The applicant's post-service achievements...
ARMY | BCMR | CY2008 | 20080019081
In his statement in his own behalf, the applicant essentially stated that he had done a lot of wrong for which he was very sorry, that he never did drugs as a civilian, but that he started using drugs a few months after being with his unit. The applicant contends that his general discharge should be upgraded to an honorable discharge. It also shows that he was discharged for the abuse of illegal drugs, which is a serious offense, and the applicant failed to provide evidence which shows...
ARMY | BCMR | CY2013 | 20130010646
The applicant provides no additional documents with his application. There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that boards 15-year statute of limitations. The applicant's contentions and supporting documents have been noted; however, he did not provide sufficient evidence to warrant an upgrade of his discharge when considering the serious nature of his offenses during such a short period...
ARMY | BCMR | CY2013 | 20130007963
The applicant requests an upgrade of his bad conduct discharge (BCD) to an honorable discharge. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be...