What are my chances of getting a bad conduct discharge upgraded for failure to obey a lawful order and larceny?

2021-12-08T18:48:56-05:00

I was given a bad conduct discharge for the following any chance I get it upgraded? :
Article 92 failure to obey a lawful order
Article 121 larceny

I was stationed on the USS Sampson from 2009 - 2011. I was supposed to do an IA to Afghanistan and got caught smoking spice. I asked for SARP before and never received a counseling. I asked OSC Jernigan & ENC Cuttler for help.

I appealed to the board of naval corrections and was denied. I feel that 3 years of honorable service trumps the one naughty thing I did. I served 90 days in the brig & have attempted to use the VA for help. I feel my discharge upgrade is warranted so I have any recourse or options? I asked for help and was never received it.

Response by LtCol Robert Quinter made Dec 8 at 2021 7:10 PM

2021-12-08T19:10:39-05:00

One thing is certain. It will not be upgraded if you don't try.

Response by SSgt Christophe Murphy made Dec 8 at 2021 7:13 PM

2021-12-08T19:13:52-05:00

Zero tolerance for prohibited substances is still live and in effect.

Honestly speaking I don’t know how you could justify an upgrade.

You miss every shot you don’t take but I have serious doubts it will be approved.

Response by MSG Private RallyPoint Member made Dec 8 at 2021 8:14 PM

2021-12-08T20:14:27-05:00

If Spice was on the NO NO list, and you smoked it.....well, you rolled the dice and lost. And larceny mixed in? Yea, I'm not confident your upgrade would happen. But, never know until you try

Response by SSG Private RallyPoint Member made Dec 8 at 2021 8:22 PM

2021-12-08T20:22:40-05:00

The thing is that you asked for help after you were caught. That still doesnt justify the fact that you committed a crime while actively serving. You threw your 3 years down the drain with your decision making because you believed you wouldnt get caught. If the board of corrections denied an upgrade, then you aren't getting one, simple as that.

Response by SGM Bill Frazer made Dec 8 at 2021 9:33 PM

2021-12-08T21:33:04-05:00

You can always apply for an upgrade, up to them if its granted. I doubt it tho.

Response by SFC Dennis Rodriguez made Dec 9 at 2021 1:07 AM

2021-12-09T01:07:56-05:00

Try and keep trying if denied. They should have taken age and experience into consideration. It might be worth hiring a lawyer.

Response by SFC Jim Ruether made Dec 9 at 2021 9:01 AM

2021-12-09T09:01:25-05:00

You should have thought about all this before you did the spice. I am sure there is more to it than you are sharing. You're going to have to take your punishment like a man and own up to your law breaking ways. I wouldn't cut you any slack because someone else had to take your place.

Response by SrA John Monette made Dec 9 at 2021 11:05 AM

2021-12-09T11:05:06-05:00

Isn't that actually two things you did that were "naughty"?

Response by SMSgt Bob W. made Dec 9 at 2021 12:16 PM

2021-12-09T12:16:56-05:00

The order issue is doable; however, forget it with the larceny. Suck it up and get on with your life.

Response by CPT Lawrence Cable made Dec 9 at 2021 1:38 PM

2021-12-09T13:38:53-05:00

In general, you have to show that the reason was incorrect or that it was excessive. If you had been enrolled in SARP and got caught, remember this part, "Commanding Officers may initiate administrative actions such as discharge, removal from flying, Personal Reliability Program, restricted area badges, etc.
Sailors in the SARP may also be disciplined under the UCMJ when independent evidence of drug use is obtained."
In addition, you have an Article 121 Larceny and a Bad Conduct Discharge, which means you were Court-Martialed and found Guilty. If that's the case, the short answer is good luck on getting an upgrade.

Response by Cpl Vic Burk made Dec 9 at 2021 2:46 PM

2021-12-09T14:46:56-05:00

Correct me if I am wrong on this someone but to get a bad conduct discharge either your record is so bad that they is no hope of rehabilitation or the crime so horrific that this discharge is warranted. They don't give out BCD's like cotton candy. Didn't you go on appellate leave while the Navy Discharge Review Board reviewed your courts martial? Then they came back with the decision that, yes, it is that bad and warranted.

I think to get a bad conduct discharge would be a something a lot more serious than simple larceny and smoking an illegal substance. To get a BCD generally required a record of past problems or something substantial for a first offense with a clean record. I might be wrong but I think there is a lot more to this story than what you are telling us.

You are probably $hit out of luck if you already appealed and it was denied. You are going to have to live with it.

Response by CW3 Kevin Storm made Dec 9 at 2021 2:56 PM

2021-12-09T14:56:59-05:00

Go to your local state run Veterans Service Office, and they normally have the forms for it.

Response by 1SG Dennis Hicks made Dec 9 at 2021 3:29 PM

2021-12-09T15:29:48-05:00

There is noting positive I can add to this post, Responsibility for ones actions should take precent over everything when you step on it.

Response by SGT Mary G. made Dec 9 at 2021 8:48 PM

2021-12-09T20:48:41-05:00

You've left out information about the larceny bit. That seems to be the serious offense charge that resulted in your outcome.

Response by SFC Kelly Fuerhoff made Dec 9 at 2021 8:56 PM

2021-12-09T20:56:14-05:00

When did you ask for help? Before you got caught or after? I mean you knew what you did was wrong but you still did it. It's not rocket science the dangers of spice or any drugs.

We don't know who OSC Jernigan or ENC Cuttler are so you really didn't need to post names nor does that help your case at all.

It doesn't really matter if you think your discharge was right or not. The Navy felt it was the proper discharge - and even on appeal they thought it was right.

Response by SGM Erik Marquez made Dec 10 at 2021 6:44 AM

2021-12-10T06:44:09-05:00

PO2 Matthew Trahan "I was given a bad conduct discharge for the following any chance I get it upgraded?"
If the review and decision are processed and made according to policy and regulation you have zero chance as discharge upgrades are not done unless they were you will have to show that your discharge was "improper" or "inequitable." Improper means factually incorrect or inconsistent with the law. Inequitable means inconsistent with the traditions and policies of the service.

Though harsh perhaps, if you were guilty under the UCMJ for Article 92 failure to obey a lawful order
Article 121 larceny, your discharge type will likely be upheld.
That said, the discharge review board is made up of humans that make decisions based on what they think the policy and regs say....anything is possible, the DRB that reviews your application for an upgrade might feel the BCD is inconsistent with the traditions and policies of the service.

Response by SSG Dale London made Dec 11 at 2021 7:24 AM

2021-12-11T07:24:18-05:00

I feel for you. It looks like you've run afoul of the military truism that one "aw, shit" erases a thousand "attaboys."
BCD's are hard things to shake and the only recourse we have is to do what you say you have already done -- that is, to apply to the appropriate board of corrections for military records.
If your appeal failed you really have no recourse under law unless something changes. The only other thing you might try -- and it is a long shot at best -- is to try and have your conviction overturned. Truth be told, I have never heard of anyone succeeding in this after having left the service.
I won't tell you to give up but I will say you will probably find yourself spending a whole lot of money in legal fees and still end up with nothing from the VA.
I advise you to do the math and see if the potential reward you seek is worth the investment you will need to make to achieve it -- if you ever do. My guess is that it won't add up.

By the way - for the record - committing larceny is not "being naughty." You stole something that wasn't yours. You know as well as any of us here that there are things you just do NOT do -- and stealing from your shipmates is one of them.
I don't know from smoking spice -- I will not judge you on that. But if I were on your review board, the larceny conviction would weigh very heavily against you.

Response by SFC Robert Walton made Dec 14 at 2021 11:29 AM

2021-12-14T11:29:35-05:00

Well, let me say it this way if you pay enough money and get the right lawyers you can possibly get it overturned. After all now days you can be a deserter and get minimal punishment.
You made the choices knowing better and now you want to erase that and start over. This is not a video game there are NO start over buttons. I love your first sentence: I was given a bad conduct discharge for the following any chance I get it upgraded? :
Article 92 failure to obey a lawful order
Article 121 larceny.
You were not given anything you earned it by your choices and decisions no one is picking on you. You just show you show bad Judgement when it comes to making educated, adult, decisions. JMT

Response by PO1 Private RallyPoint Member made Dec 16 at 2021 2:25 PM

2021-12-16T14:25:51-05:00

Idiot dirt bag that explains you

Response by PO3 David Mabo made Dec 19 at 2021 2:15 PM

2021-12-19T14:15:13-05:00

It is not going to get upgraded to a honorable, or even a general. You receive a bad conduct discharge only by an approved sentence of a general or a special court-martial. A court convicted you of two charges. The first alone would get a General, the second is a crime that requires an OTH or DCB. Only the Board of Corrections can help, and they will not if the charge was accurate.

Response by Sgt Jim Mullins made Dec 21 at 2021 11:01 AM

2021-12-21T11:01:47-05:00

Do not know what spice is but if is a drug that is not allowed in the military, you got what you deserved!

Response by MAJ Paul Grabowski made Jan 17 at 2022 4:02 PM

2022-01-17T16:02:42-05:00

PO2 rank with spice and larceny. Not a chance for an upgrade, be glad you didn't loose rank.

Response by SGT Private RallyPoint Member made Jan 18 at 2022 9:39 AM

2022-01-18T09:39:45-05:00

My guess is less than zero.

Response by Sgt Jim Mullins made Jan 18 at 2022 10:11 AM

2022-01-18T10:11:06-05:00

I do not know what SPICE is and the effects it has on humans. I do know that I do not want a Marine, Soldier, etc. serving in combat with me on drugs!!

Response by PO2 Matthew Trahan made Feb 10 at 2022 4:21 PM

2022-02-10T16:21:31-05:00

Update my attempt at the BNC was denied. I have not given up hope. I still have a desire to serve and one day become a Chief Petty Officer or Commissioned Officer. I plan on providing new evidence that I smoked spice due to my brother passing away. I am confident with a few more character witness statements & my personal statement I will be given an upgrade by the board of naval corrections. I stated I did one naughty act but even Santa let’s bad boys off the naughty list. Thanks everyone for their support and the kind words. Those who did not say nice things can suck my Florida swamp booty.