RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 APRIL 2006
      DOCKET NUMBER:   AR20050007972


      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             |
|     |Mr. Richard J. Eisenbart          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Naomi Henderson               |     |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 his Bad Conduct Discharge from his second
enlistment be upgraded to honorable, based on his honorable discharge from
his first enlistment.

2.  The applicant states in effect, that he desires to have a more
favorable discharge from his second enlistment, based on the Department of
Veterans Affairs informing him that his first and honorable discharge would
prevail over the Under Other Than Honorable Conditions discharge he
received from his second enlistment.  The applicant further states that
after he re-enlisted, he had to go home, which resulted in his receiving a
Bad Conduct Discharge for his second period of service.

3.  The applicant provides DD Form 149, and copies of two DD Form 214’s as
the source documentation for rendering a decision.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 December 1972.

2.  The applicant enlisted in the United States Army in Knoxville,
Tennessee on 24 September 1968 for a period of 3 years and training as an
airborne infantryman.  He successfully completed his basic combat training
(BCT) at Fort Campbell, Kentucky on 3 December 1968, his infantry-advanced
individual training (AIT) at Fort Dix, New Jersey on 15 February 1969 and
basic airborne training at Fort Benning, Georgia on 4 March 1969.  He was
transferred to the United States Army-Pacific (USARPAC), reporting for duty
in the Republic of South Vietnam on 8 May 1969.

3.  On 11 March 1970, the applicant was Honorably Discharged for the
purpose of immediate re-enlistment.  The applicant re-enlisted for a period
of 3 years on 12 March 1969, for continued assignment in Vietnam with duty
as a Warehouseman with the Club System.

4.  On or about 1 October 1970, the applicant went Absent Without Leave
(AWOL) from his unit in the Republic of South Vietnam.  He was Dropped From
the Rolls (DFR) in desertion on 4 November 1970.  On or about 16 July 1972,
the applicant surrendered himself to civilian authorities in Cleveland,
Tennessee and was returned to military control at the Personnel Control
Facility (PCF), Fort Campbell, Kentucky.
5.  The applicant was tried by Special Court-Martial on 29 August 1972.  He
was sentenced to be discharged from the Army with a Bad Conduct Discharge,
confinement at hard labor for two months and forfeiture of $ 190.00 for two
months.  However, the convening authority approved only so much of the
sentence as provided for a Bad Conduct Discharge.

6.  On 9 November 1972, the United States Army Court of Military Review
upheld the sentence as approved by the convening authority.

7.  Accordingly, he was discharged on 22 December 1972 with a Bad Conduct
Discharge, pursuant to a duly reviewed and approved Court-Martial
conviction. He had served 2 years, 2 months and 29 days of total active
service with 651 days of lost time due to AWOL.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel Under Other Than Honorable Conditions.
Chapter 11, Paragraph 11-2 of that regulation states; “An enlisted person
will be given a Bad Conduct Discharge pursuant to an approved sentence of a
General or Special Court-Martial, after completion of appellate review and
after such affirmed sentence has been ordered and duly executed”.
Characterization of service is determined solely by the Soldier’s military
record that includes the Soldier’s behavior and performance during the
current enlistment.

9.  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.


DISCUSSION AND CONCLUSIONS:

1.  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 in this case
has failed to submit evidence that would satisfy this requirement.

2.  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.
3.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

4.  The applicant's contentions and supporting documents have been noted,
however, they are not sufficiently mitigating to warrant the relief he
seeks when compared to the overall circumstances of his case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LE __  ___JM___  ___NH __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

     The Board determined that 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.




                                  ______Lester Echols______
                                            CHAIRPERSON
























                                    INDEX
|CASE ID                 |                                        |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060427                                |
|TYPE OF DISCHARGE       |(UOTHC-BCD)                             |
|DATE OF DISCHARGE       |19721222                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 11, Para 11-2            |
|DISCHARGE REASON        |BCD/SPEC COURT-MARTIAL                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/A68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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