RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 JULY 2005
DOCKET NUMBER: AR20040006934
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Ms. Gale J. Thomas | |Analyst |
The following members, a quorum, were present:
| |Mr. John Slone | |Chairperson |
| |Ms. Shirley Powell | |Member |
| |Mr. Stanley Kelley | |Member |
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that the records of her deceased husband, a
former service member, be corrected by upgrading his discharge to
honorable.
2. The applicant states her husband was very young, drinking heavily, and
experiencing stress when he committed the acts leading to his arrest and
subsequent conviction. The applicant further states her husband discussed
with her his plans to request an upgrade of his discharge.
3. The applicant provides no evidence in support of her request.
CONSIDERATION OF EVIDENCE:
1. The FSM enlisted in the Regular Army on 17 January 1979, for a period
of
4 years. He was 19 years old at the time of enlistment.
2. On 6 January 1983, he was convicted by a general court-martial of two
specifications of larceny, and one specification of unlawful entry. He was
sentenced to reduction to Private E-1, confinement at hard labor for 30
months, forfeiture of all pay and allowances, and to be discharged from the
service with a bad conduct discharge.
3. The findings and sentence were affirmed by the United States Army Court
of Military Review on 11 May 1984.
4. On 23 October 1984, the United States Court of Military Appeals denied
his petition for grant of review.
5. General Court-Martial Order Number 849, US Army Combined Army Center
and Fort Leavenworth, dated 4 December 1984, ordered that the sentence to a
bad conduct discharge, forfeiture of all pay and allowances, confinement at
hard labor for 30 months and reduction to Private E-1 be duly executed,
noting that the period of confinement had been served.
6. The FSM was discharged on 8 January 1985, under the provisions of Army
Regulation 635-200, paragraph 3-11, as a result of court-martial, with a
bad conduct discharge.
7. Title 10, 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.
8. Army Regulation 635-200, set forth the basic authority for the
separation of enlisted personnel. Chapter 3, paragraph 13-11, provides
that a bad conduct discharge will be issued pursuant to an approved
sentence of a general court-martial, after completion of the appellate
review, and once the sentence has been affirmed and ordered duly executed.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the
court-martial proceedings were conducted in accordance with law and
regulations applicable at the time. The character of the discharge is
commensurate with his overall record.
2. Although the former service member’s wife contends that he was young,
unhappy, and under stress due to his being away from his family, these
factors do not excuse his conduct, and do not warrant the relief requested
as a matter of equity.
3. In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust. The applicant has failed to submit evidence that would
satisfy that requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___JS___ ___SP __ __SK ___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable
error or injustice. Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.
_______John Slone_________
CHAIRPERSON
INDEX
|CASE ID |AR20040006934 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20050712 |
|TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
|DATE OF DISCHARGE |YYYYMMDD |
|DISCHARGE AUTHORITY |AR . . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |110.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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