| Mr. Carl W. S. Chun | Director | |
| Mr. William Blakely | Analyst |
| Ms. Joann H. Langston | Chairperson | ||
| Mr. Lester Echols | Member | ||
| Mr. Allen L. Raub | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded.
APPLICANT STATES: In effect, that he was judged on charges that existed prior to his entrance into the Army, and that his court-martial conviction occurred at the time when he was close to the expiration of his term of service (ETS). He claims that he has suffered enough and he is currently sick and needs medical care. Finally, he states it would serve justice and be the moral thing to do to upgrade his discharge at this time.
EVIDENCE OF RECORD: The applicant's military records show:
On 17 September 1971, the applicant enlisted in the Regular Army for 3 years. He was trained in military occupational specialty (MOS) 71B (Clerk Typist), and the highest rank he attained during his active duty tenure was private first class/E-3.
The applicant’s record reveals no acts of valor, significant achievement, or service warranting special recognition. However it does contain an extensive disciplinary history that includes his acceptance of nonjudicial punishment (NJP) on the following three occasions for the offenses indicated: 8 May 1973, for two specifications of failing to go to his appointed place of duty; 8 August 1973, for two specifications of failing to go to his appointed place of duty; and 27 February 1974, for using provoking language towards an officer candidate and being disrespectful to a superior commissioned officer. In addition, on 23 August 1971, the applicant was convicted of aggravated assault on two separate occasions by a special court-martial (SPCM). His sentence included reduction to private/E-1, confinement at hard labor for three months, and forfeiture of $150.00 per month for four months.
SPCM Order Number 58, dated 7 June 1974, issued by Headquarters, US Army Infantry Center and Fort Benning, Fort Benning, Georgia, confirms that the applicant was convicted of possession of one ounce or more of marijuana by a SPCM on 9 May 1974. The resultant sentence included a forfeiture of $160.00 per month for three months, confinement for 80 days, and a BCD.
On 25 March 1975, the United States Court of Military Appeals denied the applicant’s petition for a grant of review. SPCM Order Number 172, dated
31 March 1975, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, ordered the unexecuted portion of the sentence pertaining to the applicant’s BCD executed. On 22 April 1975, the applicant was discharged accordingly. At the time of his discharge, he had completed 3 years, 1 month, and 9 days of creditable active military service, and had accrued 177 days of lost time.
On 10 May 1979, the Army Discharge Review Board determined the applicant’s discharge had been proper and equitable and it elected to deny clemency in the form of an upgrade to the applicant’s discharge.
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 it 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 carefully considered the applicant’s assertion that his
court-martial conviction was based on offenses that occurred prior to his entering the Army, but it finds insufficient evidence to support this claim. It also notes his contentions that his discharge was unjust because it occurred when he was due to ETS, because he has suffered long enough, and because he is now sick and in need of medical care. However, the Board finds none of these factors either individually or in sum are 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.
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 offense with which he was charged.
4. Notwithstanding the applicant’s contentions and desires, the Board finds that the type of discharge appropriately characterizes the misconduct for which he was convicted and accurately reflects his overall record of undistinguished service. Therefore, it finds there is an insufficient basis to grant clemency 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
__JHL__ __ LE _ __ ALR __ DENY APPLICATION
| CASE ID | AR2002079300 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 2003/02/20 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 19750422 |
| DISCHARGE AUTHORITY | AR 635-200. . . . . |
| DISCHARGE REASON | Court-Martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 105.0100 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2001 | 2001051836C070420
The applicant requests correction of military records as stated in the application to the Board and as restated herein. 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: The applicant’s SPCM conviction and the resultant BCD were effected in accordance with applicable law and regulations in effect at the time.
ARMY | BCMR | CY2011 | 20110012459
The applicant requests an upgrade of his bad conduct discharge (BCD). 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. On 14 April 1986, the Army Discharge Review Board denied his request to upgrade his discharge.
ARMY | BCMR | CY2008 | 20080013489
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. On 20 January 1975, the applicant was discharged accordingly.
ARMY | BCMR | CY2002 | 2002068597C070402
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 | CY2006 | 20060008604C071113
On 22 September 1976, the convening authority approved the sentence and the record of trial was forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review. On 14 March 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge. There is no credible evidence in the applicant’s record, nor has he presented any evidence, to warrant the requested relief based on error or injustice in the court-martial process.
ARMY | BCMR | CY2007 | 20070002873C071029
The resulting approved sentence was a BCD. Given his undistinguished record of service and the severity of the offenses for which he was convicted, there is an insufficient evidentiary basis to support clemency in this case. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.
ARMY | BCMR | CY2001 | 2001052763C070420
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: Based on the seriousness of the offenses for which the applicant was convicted, the Board concludes that the resultant DD was an appropriate punishment and even after considering his overall record of service, the Board still concludes that...
ARMY | BCMR | CY2014 | 20140018482
When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. His discharge was affirmed and he was discharged accordingly on 31 March 1975. His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterized the misconduct for which he was convicted.
ARMY | BCMR | CY2008 | 20080005309
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. On 23 July 1980, after considering the applicants case, the Army Discharge Review Board (ADRB) determined the applicants discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge. However, there...
ARMY | BCMR | CY2013 | 20130009253
Application for correction of military records (with supporting documents provided, if any). Special court-martial (SPCM) Order Number 67, dated 1 August 1978, shows that on 25 May 1978 Charge I was dismissed; however, he was found guilty of Charge II (stealing about $1000 worth of property belonging to another Soldier) and Charge III (unlawfully striking Sergeant WGM on the neck and facial area with his fists). There is no documentation showing he petitioned the Army Discharge Review...