RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JUNE 2006
      DOCKET NUMBER:   AR20050015266


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. Chester Damian                |     |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 (BCD) be upgraded
to a general discharge and that the reason for his discharge be changed to
a more favorable reason.

2.  The applicant states that his discharge should be changed because he
has a witness who was involved who can and will testify to the truth of the
matter at hand and will testify under oath of what should have been done on
18 September 1998.  He goes on to state that the individual will testify
that he falsely accused him (the applicant) as a co-conspirator.  He also
states that he realizes that the conviction cannot be set aside; however,
he desires an upgrade as a matter of clemency.  He further states that he
has tried to obtain a good paying job; however, without being able to get a
security clearance, he is severely hampered.  He goes on to state that he
is a single father raising two children and he served his country
faithfully for over 19 years.  All he wants is to be able to gain a better
job and he needs the Board’s help to do that.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in Houston, Texas, on 8 September 1982 for a period of 3
years and training as a supply specialist.  He remained on active duty
through a series of continuous reenlistments and was promoted to the pay
grade of E-7 on 1 October 1994.

2.  On 27 June 1997, he received a relief for cause noncommissioned officer
evaluation report (NCOER) covering the period from July 1996 through May
1997.  His evaluation report indicates that he was relieved because of
misappropriation of government funds and property.  On 6 April 1998, the
applicant was notified that the Calendar Year 1998 Master Sergeant
Promotion Selection Board had determined that he should be barred from
reenlistment based on the presence of the relief for cause NCOER in his
OMPF.

3.  On 18 September 1998, the applicant was convicted by a general
  court-martial of conspiring to commit larceny of government funds and
three specifications of larceny of government property.  He was sentenced
to confinement for 1 year, forfeiture of all pay and allowances, reduction
to the pay grade of E-1 and to be dishonorably discharged.  The convening
authority approved only so much of the sentence as pertained to confinement
for 1 year, forfeiture of all pay and allowances, reduction to the pay
grade of E-1, and a BCD.

4.  On 12 April 2001, the United States Army Court of Criminal Appeals
affirmed only so much of the finding of guilty of the charge of conspiracy
to commit larceny and two specifications of stealing government property.
The court reassessed the sentence and affirmed only so much of the sentence
as provided for a BCD, confinement for 6 months, forfeiture of $600.00 pay
per month for 6 months and reduction to the pay grade of E-1.

4.  On 8 January 2002, he was discharged pursuant to a duly reviewed and
affirmed court-martial conviction.  He had served 19 years, 4 months and
1 day of total active service.

5.  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.  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 applicant’s contentions have been noted by the Board.  However,
they are not sufficiently mitigating to warrant relief when compared to the
seriousness of his offenses.

4.  While the applicant contends that his co-conspirator in the trial by
        court-martial is now willing to testify that he (the applicant) was
falsely accused, the credibility of such testimony would be questionable at
best, given the nature of the offenses and the evidence that supported his
conviction.


5.  The evidence suggests that the applicant violated the trust placed in
him as a leader and funds custodian.  Accordingly, his punishment was not
disproportionate to the offenses for which he was convicted and he has
failed to show sufficient evidence or reasons to warrant an upgrade of his
discharge based on clemency.

6.  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

____LS  _  ____RS _  ___CD _  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.





                                  ______Linda Simmons_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015266                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |2002/01/08                              |
|DISCHARGE AUTHORITY     |GCM . . . . .                           |
|DISCHARGE REASON        |GCM                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/A68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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