RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            December 2, 2003
      DOCKET NUMBER:   AR2003091652

      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. Yvonne J. Foskey              |     |Analyst              |

  The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Patrick H. McGann             |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 an honorable discharge (HD).

2.  The applicant presents no argument or statement; however, he does
provide a copy of his separation document (DD 214) and copies of two
discharge certificates in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially entered active duty in the Regular Army (RA) on

24 June 1972.  He was trained and served in military occupational specialty
(MOS) 11B).  On 21 June 1976, he was honorably released from active duty
(REFRAD) and transferred to the United States Army Reserve (USAR) Control
Group to complete his military service obligation.  At the time of his
separation, he held the rank of specialist four (SP4) and he had completed
a total of 3 years, 11 months, and 28 days of active military service.

2.  On 25 November 1976, he was honorably discharged from the USAR in order
to reenter active duty in the RA.  On 26 November 1976, he reenlisted in
the RA for four years.  He was retrained in MOS 51H (Construction Engineer)
and continuously served until being honorably discharged for the purpose of
reenlistment on 27 August 1980.  On 28 August 1980, he reenlisted for three
years and began the enlistment under review.

3.  The applicant’s Personnel Qualification Record (DA For 2-1) shows that
during his tenure on active duty, he earned the following awards:  National
Defense Service Medal; Good Conduct Medal; Army Service Ribbon;
Noncommissioned Officer (NCO) Professional Development Ribbon; Overseas
Service Ribbon; Expert Marksmanship Qualification Badge with Rifle and
Hand Grenade Bars.

4.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1
confirms that he was promoted to staff sergeant/E-6 (SSG/E-6) on 7 May
1981, and that this was the highest rank he attained while serving on
active duty.  It also confirms that he was reduced to the rank of private/E-
1 on 7 July 1983 based on the sentence of special court-martial (SPCM).
5.  On 5 May 1983, the applicant was found guilty pursuant to his pleas of
three specifications of being absent without leave (AWOL) and four
specifications of wrongfully purchasing controlled items in excess of the
prescribed monthly limits established by Eighth Army Regulation 60-1.  The
resultant sentence included confinement at hard labor for five months,
forfeiture of $382.00 per month for five months, reduction to the grade of
private/E-1 (PV1), and a BCD.  On 1 June 1983, the convening authority
suspended for six months confinement at hard labor in excess of three
months.  On 18 August 1983, the unexecuted portion of the confinement was
remitted.

6.  On 31 January 1984, the United States Army Court of Military Review
upon consideration of the entire record of the special court-martial,
including consideration of the issues specified by the appellant, held that
the findings of guilty and the sentence as approved by the convening
authority were correct in law and fact.  Accordingly, the guilty findings
and the sentence were affirmed.

7.  On 30 May 1984, SPCM Order Number 235, issued by the United States Army
Correctional Activity, Fort Riley, Kansas, directed the unexecuted portion
of the approved sentence, to include the BCD, be executed as a result of
Article 71 (c) of the Uniform Code of Military Justice (UCMJ) having been
complied with.

8.  On 12 June 1984, the applicant was discharged accordingly.  At the time
of his discharge, he had completed a total of 10 years, 7 months, and 12
days of creditable active military service, and he had accrued a total of
333 days of time lost due to AWOL and confinement.

9.  There is no evidence of record that indicates the applicant applied to
the Army Discharge Review Board to request an upgrade of his discharge
within its
15 year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides policy for the
separation of members with a dishonorable or bad conduct discharge pursuant
to an approved sentence of a general or special court-martial.  It states
that discharge would be accomplished only after the completion of the
appellate process, and affirmation of the court-martial findings and
sentence.

11.  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 AND CONCLUSIONS:

1.  The applicant’s request to have his BCD upgraded to a HD was carefully
considered.  However, 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.

2.  The evidence of record confirms that the applicant’s 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.
  In order to justify
3.  In order to justify correction of a military record the applicant must
show that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.  Therefore, given the
lack of any compelling independent evidence that supports clemency and
based on the applicant’s undistinguished overall record of service, an
upgrade to his discharge is not warranted at this time.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PM___  ___MM__  __FE___  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.




             Fred N. Eichorn
            CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003091652                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2003/12/02                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1984/06/12                              |
|DISCHARGE AUTHORITY     |AR 635-200 chapter 3                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |