| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. Margaret K. Patterson | Chairperson | ||
| Mr. Christopher J. Prosser | Member | ||
| Mr. Harry B. Oberg | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to an honorable discharge (HD).
APPLICANT STATES: In effect, that the BCD that he received as a result of a conviction by a general court-martial (GCM) should be upgraded. He claims that his immaturity at the time contributed to his misconduct. He also contends that since his discharge, he has been a God fearing, hard working, law abiding citizen. Further, he claims that he has overcome hardship and adversity, and is now working on an electrical engineering degree in order to continue to be a contributing and productive citizen. He finally requests that these factors be considered and that his discharged be upgraded.
EVIDENCE OF RECORD: The applicant's military records show:
He served on active duty from 1 November 1989 to 17 December 1993. His records confirm that he was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Crewman). The highest rank he attained while serving on active duty was private first class/E-3, and his record documents no acts of valor, significant achievement, or service warranting special recognition.
On 31 July 1991, the applicant was convicted by a GCM of two specifications of the wrongful distribution of marijuana on the following dates for the amounts indicated: 25 February 1991, approximately 3 grams; and 6 March 1991, approximately 3.50 grams. The sentence adjudged by the court was forfeiture of all pay and allowances, confinement for five years, and a dishonorable discharge.
On 20 November 1991, in GCM Order Number 108, issued by Headquarters,
3rd Infantry Division, Europe, the convening authority approved the following sentence: forfeiture of all pay and allowances; confinement for three years; and a BCD. All but the BCD portion of the sentence was ordered executed.
On 22 April 1993, the United States Army Court of Military Review examined the record of trial and found it to be legally sufficient to support the findings of guilty and the sentence, and it affirmed the conviction.
On 3 December 1993, in GCM Order Number 406, issued by the United States Disciplinary Barracks, Combined Arms Command and Fort Leavenworth,
Fort Leavenworth, Kansas, the unexecuted portion of the applicant’s sentence pertaining to the BCD was ordered executed. On 17 December 1993, he was discharged accordingly after completing a total of 1 year, 9 months, and 19 days of creditable active military service, and accruing 852 days of lost time due to 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 contentions that his BCD should be upgraded based upon his lack of maturity during his period of enlistment, and on his post service conduct and achievements. However, it also notes that the applicant was over 18 at the time of his enlistment and there is no evidence to show that he was any less mature than others of the same age who successfully served at the time. Further, while his post service conduct is noteworthy, it alone is not sufficiently mitigating to warrant the requested relief.
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. 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.
3. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge he received appropriately characterizes the misconduct for which he was convicted, and accurately reflects his overall record of service. Therefore, notwithstanding his post service good conduct and achievements, the Board finds that there is an insufficient basis to grant clemency in this case.
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
__MKP__ __CJP __ _ _HBO __ DENY APPLICATION
| CASE ID | AR2002074256 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/08/29 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 19931217 |
| DISCHARGE AUTHORITY | AR635-200 paragraph 3-11 |
| DISCHARGE REASON | Result of Court-martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1.144.9301 | 105.01000 |
| 2.144.9221 | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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