| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Ms. Joann H. Langston | Chairperson | ||
| Mr. Richard T. Dunbar | Member | ||
| Ms. Yolanda Maldonado | Member |
APPLICANT REQUESTS: In effect, that his Bad Conduct Discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD).
APPLICANT STATES: In effect, that he needs to upgrade his discharge in order to have the opportunity to gain good career employment and voting rights. He also claims that an upgrade would also allow him to better care for his family, to serve as mentor to community children in need of help, and to be a contributing member of society. He finally comments that he has not been involved in any criminal activity since his discharge.
EVIDENCE OF RECORD: The applicant's military records show:
He entered the Regular Army on 4 August 1989, and served on active duty until being separated with a BCD on 30 September 1994. His record further shows that the highest rank he attained while serving on active duty was specialist/E-4, and that he earned the following awards during his active duty tenure: National Defense Service Medal; Army Achievement Medal (2); Army Service Ribbon; and Overseas Service Ribbon. There are no other acts of valor, significant achievement, or service warranting special recognition documented in his record.
The applicant’s record does contain a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 13 December 1991, which resulted in his reduction to private first class/E-3; and the general court-martial (GCM) conviction that resulted in his discharge.
On 28 June 1993, a GCM convicted the applicant of violating Articles 95, 112a, and 86 of the UCMJ. The first guilty finding was for resisting apprehension on
or about 22 October 1992. The second was for the wrongful possession of 5.85 grams of cocaine, with intent to distribute, on or about 22 October 1992; and the third guilty finding was for being absent without leave (AWOL) from on or about
2 December 1992 to on or about 1 March 1993. The resultant sentence included a BCD, 45 months confinement, forfeiture of $500.00 per month for 45 months, and reduction to private/E-1. On 27 August 1993, the GCM convening authority approved the sentence and directed all but the portion pertaining to the BCD to be executed.
On 19 November 1993, 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, the guilty findings and sentence were affirmed by the court.
On 6 May 1994, the United States Court of Military Appeals considered and denied the applicant’s petition for a grant of review of the decision of the United States Army Court of Military Review.
On 30 September 1994, the applicant was discharged. The separation document (DD Form 214) issued to him at the time shows that he received a BCD pursuant to a GCM conviction. It also confirms that at the time of his discharge, he had completed a total of 3 years, 3 months, and 27 days of creditable active military service, and he accrued a total of 666 days of time lost, 243 days prior to his normal expiration of term of service (ETS) and 423 days subsequent to his normal ETS.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3 establishes the policy for the separation of members with a dishonorable or bad conduct discharge pursuant to an approved sentence of a general or special court-martial. It stated that discharge would be accomplished only after the completion of the appellate process, and affirmation of the court-martial findings and sentence.
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. 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
__rtd____ ___jhl___ __ym ___ DENY APPLICATION
| CASE ID | AR2003086815 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/04/15 |
| TYPE OF DISCHARGE | BCD |
| DATE OF DISCHARGE | 1994/09/30 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | GCM |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 189 | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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