RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 17 April 2007
DOCKET NUMBER: AR20060014226
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.
x
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, in effect, that his Bad Conduct Discharge (BCD) be upgraded to a more favorable discharge.
2. The applicant states, in effect, that his discharge was inequitable because it was based on only one isolated incident and he had no other adverse incidents during his career. He also states that he has a faithful sense of the men and women who serve this country.
3. The applicant provides no additional documents or evidence with his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 26 October 1976 for a period of 3 years, training as a flight operations specialist and assignment to Fort Hood, Texas. He completed his basic combat training at Fort Knox, Kentucky and his advanced individual training (AIT) at Fort Rucker, Alabama.
2. Upon completion of his AIT he was transferred to Fort Hood on 6 March 1977. He was advanced to the pay grade of E-3 on 1 July 1977. On 19 September 1977, his check cashing privileges were suspended due to his second offense of writing dishonored checks at the Fort Hood Post Exchange.
3. On 17 February 1978, he was convicted by a special court-martial of two specifications of failure to go to his place of duty, two specifications of being disrespectful towards a superior commissioned officer, and one specification of disobeying a lawful order from a superior commissioned officer. He was sentenced to confinement at hard labor for 45 days, reduction to the pay grade of E-1, and a forfeiture of pay.
4. On 23 May 1978, he was convicted by a general court-martial of escaping from custody and stealing a refrigerator from the Army and Air Force Exchange Service. He was sentenced to confinement at hard labor for 1 year, a forfeiture of $300.00 pay per month for 12 months, and a BCD.
5. On 29 December 1978, the United States Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.
6. On 19 April 1979, the applicant was discharged pursuant to a duly reviewed and affirmed court-martial conviction. He had served 1 year, 3 months, and 10 days of total active service and had 434 days of lost time due to imprisonment.
7. Title 10, United States Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then 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.
8. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicants failure to timely file.
DISCUSSION AND CONCLUSIONS:
1. 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.
2. The type of discharge directed and the reasons therefore appear to be appropriate considering the available facts of the case.
3. The applicants contentions have been noted; however, they are not sufficiently mitigating to warrant an upgrade of his discharge when compared to the nature of his misconduct and his overall undistinguished record of service.
4. 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__x__ _x ___ _x ___ 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.
______x_________
CHAIRPERSON
INDEX
CASE ID
AR20060014226
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(BCD)
DATE OF DISCHARGE
1979/04/19
DISCHARGE AUTHORITY
GCM . . . . .
DISCHARGE REASON
GCM
BOARD DECISION
(DENY)
REVIEW AUTHORITY
ISSUES 1.144.6800
675/A68.00
2.
3.
4.
5.
6.
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