| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Raymond V. O’Connor, Jr. | Chairperson | ||
| Mr. Arthur A. Omartian | Member | ||
| Ms. Marla J. N. Troup | Member |
APPLICANT REQUESTS: In effect, that his discharge be upgraded.
APPLICANT STATES: In effect, that he has been a law abiding citizen all of his life. He claims that he does not drink alcohol anymore, and he has been alcohol free since 1996. He also indicates that he was under the influence of alcohol during his whole Army career. He claims that he has never been in trouble except for the incidents that took place while he was in the Army. He states that he is now 36 years old and he has had the same job, as a retail manager, since 1997, and he now asks that he been given a second chance.
EVIDENCE OF RECORD: The applicant's military records show:
He entered the Regular Army on 1 December 1997 and served on active duty until separated with a bad conduct discharge (BCD) on 18 October 1993.
The applicant’s record shows that the highest rank he attained while serving on active duty was specialist/E-4 (SPC/E-4) and that the only individual award he received was the Army Good Conduct Medal. The record documents no acts of valor, significant achievement, or service warranting special recognition.
On 27 June 1991, the applicant was found guilty of two specifications of assault upon a child under the age of 16 and one specification of making a false statement by a general court-martial (GCM). He was sentenced to a dishonorable discharge (DD), confinement for 21 months, and a reduction to the grade of E-1.
On 10 September 1992, the Commanding General, III Corps and Fort Hood, Fort Hood, Texas, directed the applicant to take involuntary excess leave upon his release from confinement. Accordingly, on 11 September 1992, applicant was placed on excess leave.
On 31 March 1992, the United States Army Court of Military Review reviewed the applicant’s case, and it held that the findings of guilty and the sentence as approved by the convening authority were correct in law and fact. Accordingly, it affirmed the findings of guilty and the sentence. There is no indication that any portion of the sentence was modified by this appellate decision.
On 18 October 1993, the applicant was discharged. The separation document (DD Form 214) issued to him at the time shows that he was discharged under the provisions of chapter 3, Army Regulation 635-200, by reason of court-martial. It also confirms that at the time of his discharge, he had completed a total of
4 years, 11 months, and 5 days of creditable active military service.
Item 24 (Character of Service) of the applicant’s separation document contains the entry “Bad Conduct” which indicates he received a BCD. However, the record is unclear as to why the applicant received a BCD instead of the
DD directed by his court-martial sentence.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and the affirmed sentence ordered duly executed.
Title 10 of the United States Code, section 1552 as amended does not permit any redress by this Board of the finality of a court-martial conviction and empowers the Board 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 evidence of record confirms that the applicant’s trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted.
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 Board carefully considered the applicant’s entire record of service and his post service conduct. However, given the seriousness of the offenses for which he was convicted, the Board finds that these factors are not sufficiently meritorious or mitigating to warrant clemency in this case.
4. It appears to the Board that the type of discharge the applicant finally received was more favorable than the one to which he was sentenced. However, given the lack of any explanation in the record for this outcome, the Board elects not to make a recommendation in this regard.
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
__RVO__ __AAO _ __MJNT__ DENY APPLICATION
| CASE ID | AR2002078316 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/01/16 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 1993/10/18 |
| DISCHARGE AUTHORITY | AR 635-200 C3 |
| DISCHARGE REASON | Court-Martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 189 | 110.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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