| Mr. Carl W. S. Chun | Director | |
| Mr. Jessie B. Strickland | Analyst |
| Mr. Elzey J. Arledge, Jr. | Chairperson | |
| Mr. Thomas B. Redfern, III | Member | |
| Ms. Karen A. Heinz | Member |
APPLICANT REQUESTS: That his bad conduct discharge (BCD) be upgraded to honorable.
APPLICANT STATES: That he believes his discharge was unfair because he was sick with seizures and his superiors kept giving him orders that he could not perform due to his disability.
EVIDENCE OF RECORD: The applicant's military records show:
He enlisted in Houston, Texas, on 5 August 1992 for a period of 4 years and training as an Avenger crewmember. He successfully completed his training and was assigned to Fort Ord, California, where he remained until he was reassigned to Fort Drum, New York, on 3 July 1993. He was advanced to the pay grade of E-4 on 1 February 1995.
On 27 November 1995, the applicant plead guilty to the charges of three specifications of failure to go to his place of duty, willfully missing movement of his unit, disobeying a lawful order from a commissioned officer, and being willfully disrespectful in language towards a commissioned officer. He was convicted by a special court-martial of the charges and was sentenced to confinement for 5 months, a forfeiture of pay, reduction to the pay grade of E-1 and a BCD.
On 21 April 1997, the United States Army Court of Military Review affirmed the findings and sentence of the special court-martial.
Accordingly, he was discharged on 14 January 1998, pursuant to a duly reviewed and affirmed sentence of a special court-martial conviction. He had served 5 years, 1 month and 10 days of total active service and had 120 days of lost time due to imprisonment.
The applicant’s medical records were not available for review by the Board; however, his records do contain a Radiologic Examination Report dated 8 March 1996, which indicates that there were no radiographic cardiopulmonary abnormalities identified.
The applicant applied to the Army Discharge Review Board (ADRB) on 28 March 2002. He cited the same reasons to that board that he has cited to this Board. The ADRB denied his request for an upgrade of his discharge on 28 August 2002.
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. The Board also notes that if in fact he had a medical condition that contributed to his misconduct, he had an opportunity to present such evidence at his trial by court-martial. Accordingly, the Board finds that given the available evidence, his contentions alone are not sufficiently mitigating to warrant relief/clemency, when compared to the seriousness of his offenses.
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
___eja __ __kh____ ___tbr___ DENY APPLICATION
| CASE ID | AR2002078415 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2002/09/17 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 1998/01/14 |
| DISCHARGE AUTHORITY | SPCM |
| DISCHARGE REASON | SPCM |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 685 | 144.6800/A68.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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