| Mr. Carl W. S. Chun | Director | |
| Mr. Wanda L. Waller | Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Ms. Eloise C. Prendergast | Member | |
| Mr. Ronald E. Blakely | Member |
APPLICANT REQUESTS: In effect, that clemency in the form of a general discharge be granted.
APPLICANT STATES: In effect, that he completed the ten-week program for Post Traumatic Stress Disorder (PTSD) in 1997, that he regularly attends outpatient treatment for PTSD and that he has been diagnosed with pancreatitis. In support of his application, he submits a Department of Veterans Affairs (DVA) Compensation and Pension Exam Report, dated 23 February 1998; three DVA medical records, dated 7 January 2003; a DVA medical record, dated 15 January 2003; Special Court-Martial Order Number 103, dated 24 October 1974; U.S. Army Court of Military Review Decision, dated 8 August 1974; Special Court-Martial Order Number 17, dated 7 June 1973; a copy of his DD Form 214 (Report of Transfer or Discharge); a medical record; two Certificates of Appreciation; a Certificate of Achievement; and three character reference letters.
COUNSEL CONTENDS: The American Legion was notified of the applicant's pending review; however, no brief was submitted.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was inducted on 18 October 1966, served as a combat engineer in Vietnam and was released from active duty on 17 October 1968. He enlisted in the Regular Army on 11 March 1971 for a period of 3 years.
On 1 March 1973, contrary to his pleas, the applicant was convicted by a special court-martial of aggravated assault upon another soldier by cutting him on the arm, thigh, hand, and back with a knife. He was sentenced to be discharged from the service with a bad conduct discharge, to be reduced to pay grade E-1, and to be confined at hard labor for 3 months. On 7 June 1973, the convening authority approved the sentence.
On 8 August 1974, the United States Army Court of Military Review affirmed the findings of guilty and sentence. The bad conduct discharge was ordered executed on 24 October 1974.
Accordingly, the applicant was discharged on 9 April 1975 pursuant to the sentence of a special court-martial. He was issued a Bad Conduct Discharge Certificate. He had served 5 years, 10 months and 14 days of total active service with 76 days lost due to confinement and 688 days of excess leave.
Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Paragraph 3-11 of this regulation states that a soldier will be given a bad conduct discharge 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.
Section 1552(f), Title 10, United States Code states that the ABCMR can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ) or to take clemency action.
Army Regulation 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a soldier whose military record is satisfactory but not sufficiently
meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the soldier’s separation specifically allows such characterization.
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. The Board considered the character reference letters provided in support of the applicant. However, good post service conduct alone is not a basis for upgrading a discharge.
3. The applicant has failed to show through the evidence submitted with his application or the evidence of record that the actions taken in his case were in error or unjust.
4. The Board determined that the aggravated assault offense was too serious to grant clemency in the form of a general discharge.
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
AAO___ ECP_____ REB_____ DENY APPLICATION
| CASE ID | AR2003089581 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20031113 |
| TYPE OF DISCHARGE | GD |
| DATE OF DISCHARGE | 19750409 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | Pursuant to the sentence of a special court-martial |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110.0200 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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