| Mr. Carl W. S. Chun | Director | |
| Ms. Rosa M. Chandler | Analyst |
| Ms. Margaret K. Patterson | Chairperson | |
| Mr. Walter T. Morrison | Member | |
| Mr. Thomas E. O'Shaughnessy, Jr. | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to that of an honorable discharge.
APPLICANT STATES: In effect, that he is requesting clemency so that he may be able to find gainful employment. He has not been involved any criminal activity since being separated.
EVIDENCE OF RECORD: The applicant's military records show:
That, on 7 August 1991, he enlisted in the Delayed Entry Program (DEP). On 9 August 1991, he was discharged from the DEP and he enlisted in the Regular Army for 4 years. Following completion of all required military training, he was awarded military occupational specialty (MOS) 11B, Infantryman, and on 25 February 1992, he was assigned to a unit at Fort Lewis, Washington, with duty in his MOS.
On 9 September 1994, the applicant was convicted pursuant to his pleas by a general court-martial for conspiring to steal firearms and for larceny of firearms, of a value in excess of $100.00 (military property). He was sentenced to reduction from pay grade E-4 to pay grade E-1, forfeiture of $200.00 pay per month for 10 months, confinement at hard labor for 6 months, and to be separated with a BCD.
The applicant remained in military confinement from 9 September 1994 to 31 January 1995 when he was released. On 6 April 1995, the applicant was placed on excess leave pending completion of the appellate review process.
On 16 October 1995, the United States Army Court of Criminal Appeals affirmed the findings and approved the sentence. On 7 June 1996, the appropriate authority ordered the BCD to be duly executed.
On 1 July 1996, the applicant was discharged in absentia under the provisions of chapter 3, Army Regulation 635-200, with a BCD as a result of his conviction by a general court-martial. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 4 years, 5 months, and 28 days of active military service and he had 145 days of lost time due to being in military confinement.
The applicant applied to the Army Discharge Review Board (ADRB) in 2002, and he was notified by the ADRB that the Board did not have the authority to review a discharge by reason of a general court martial.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, paragraph 3-11, provides that a soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed.
Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, United States Code, Section
1552, the authority under which this Board acts, the ABCMR is empowered to change the severity of the sentence imposed in the court-martial process 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. 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.
2. 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.
3. In view of the foregoing, the applicant has established no basis for the Board to grant clemency.
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___ __wtm___ __teo___ DENY APPLICATION
| CASE ID | AR2002080534 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20030729 |
| TYPE OF DISCHARGE | (BCD) |
| DATE OF DISCHARGE | 19960701 |
| DISCHARGE AUTHORITY | AR635-200, Chap 3 |
| DISCHARGE REASON | A68.00 |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 144.6800 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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