| Mr. Carl W. S. Chun | Director | |
| Ms. Yvonne J. Foskey . | Analyst |
| Mr. Luther L. Santiful | Chairperson | |
| Mr. Curtis L. Greenway | Member | |
| Mr. Ronald J. Weaver | Member |
APPLICANT REQUESTS: In effect, that his bad conduct discharge (BCD) be upgraded to a general, under honorable conditions discharge (GD)
EVIDENCE OF RECORD: The applicant's military records show:
On 18 January 1994, he entered active duty in the Regular Army. He successfully completed basic training at Fort Sill, Oklahoma and advanced individual training (AIT) at Fort Bliss, Texas. Upon completion of AIT, he was awarded military occupation specialty (MOS) 14R (Line of Sight-Forward-Heavy Crewmember).
The applicant’s records document no acts of valor, significant achievement, or service warranting special recognition. It does reveal a disciplinary history that includes his receiving a memorandum of reprimand (MOR) on 29 April 1996, for driving under the influence of alcohol, and the general court-martial (GCM) that lead to his BCD.
On 11 December 1996, the applicant was found guilty pursuant to his pleas of the wrongful distribution of marijuana by a GCM. His sentence included a reduction to the grade of E-1, forfeiture of all pay and allowances, confinement for 6 months, and a BCD. The convening authority approved only so much of the sentence that provided for confinement for 5 months, reduction to the grade of E-1, forfeiture of all pay and allowances, and a BCD.
On 7 May 1997, the United States Army Court of Criminal Appeals upon consideration of the entire record, held that the findings of guilty and the sentence as approved by the GCM convening authority was correct in law and fact. Accordingly, the guilty finding and the sentence were affirmed.
On 10 February 1998, GCM Order Number 9, issued by Headquarters, United States Army Armor Center and Fort Knox, Fort Knox, Kentucky directed that the BCD portion of the applicant’s sentence be executed based on the guilty findings and sentence having been finally affirmed. On 10 April 1998, the applicant was discharged accordingly.
The DD Form 214 issued to the applicant on the date of his separation shows that he received a BCD, under the provisions of section IV, Chapter 3,
Army Regulation 635-200, by reason of court-martial. It also shows that at the time of his separation, he held the rank of private/E-1, and he had completed
3 years, 10 months, and 18 days of creditable active duty service.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 3, Section IV, establishes policy and procedures for separating members with a dishonorable or bad conduct discharge; and provides that a soldier will be given one of these punitive discharges pursuant only to an approved sentence of a general or special court-martial; and that the appellate review must be completed and affirmed sentence ordered duly executed.
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 found it was not sufficiently meritorious to warrant clemency given the seriousness of the offense for which he was convicted. 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
__LS__ _RJW___ __CLG__ DENY APPLICATION
| CASE ID | AR |
| SUFFIX | |
| RECON | |
| DATE BOARDED | |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | AR |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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