RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 SEPTEMBER 2006
      DOCKET NUMBER:   AR20060002544


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric Anderson                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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 an honorable or a general discharge.

2.  The applicant states that it has been about 15 years since he left the
Army and he realizes the mistakes that he made so many years ago have
really affected his life.  He states that he was an excellent Soldier for 8
or 9 years, and that he received many medals and attended many schools
while he was in the service.  He states that he became more knowledgeable
while he was in the Army, and that he his hoping that an upgrade will be
better for the service and better for this country.  He states that he
hopes that the Army can look at his military career and see that he was a
very good soldier, and take into consideration that his mistakes should
not, if at all possible, keep him from achieving his desire to be the best
that he can be.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 23 October 1990.  The application submitted in this case
is dated 15 February 2006.

2.  On 24 November 1981, he enlisted in the Army in New York, New York, for
4 years, in the pay grade of E-1.  He successfully completed his training
as a chemical operations specialist.  He was promoted to the pay grade of E-
2 on 24 May 1982, to the pay grade of E-3 on 1 October 1982, to the pay
grade of E-4 on 1 January 1984, and to the pay grade of E-5 on 19 September
1984.

3.  His Personnel Qualification Record shows that he was awarded the Army
Service Ribbon, the Army Commendation Medal, the Overseas Service Ribbon
with Numeral two, the Noncommissioned Officers Professional Development
Ribbon, the Army Good Conduct Medal (2nd Award), the Army Achievement
Medal, the Expert Marksmanship Badge (Rifle M-16), and the Sharpshooter
Marksmanship Badge (Grenade).




4.  Nonjudicial punishment (NJP) was imposed against the applicant on
30 November 1988, for operating a vehicle while drunk on 19 August 1988;
for failure to go to his appointed place of duty on 17 August 1988; and for
being incapacitated for proper performance of his duties on 17 October
1988, as a result of overindulgence in intoxicating liquor.  His punishment
consisted of a reduction to the pay grade of E-4, a forfeiture of pay in
the amount of $450.00 per month for 2 months, 35 days of restriction, and
24 days of extra duty.

5.  On 9 February 1989, the applicant was convicted, pursuant to his pleas,
by a special court-martial of driving while drunk, and of disobeying a
general regulation by driving without a license.  He was sentenced to a
BCD, confinement for 4 months, a reduction to the pay grade of E-1, and a
forfeiture of pay in the amount of $200.00 per month for 4 months.

6.  The convening authority approved the sentence as adjudged, and on
28 September 1989, the United States Court of Military Review affirmed the
findings and sentence as approved by the convening authority.

7.  Accordingly, on 23 October 1990, the applicant was discharged under the
provisions of Army Regulation 635-200, chapter 3, as a result of a duly
reviewed and affirmed special court-martial conviction.  He had completed 8
years, 11 months and 23 days of total active service and he was furnished a
BCD.

8.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, paragraph 3-11 provides that
a soldier will be given a BCD pursuant only to an approved sentence of a
general or special court-martial.  The appellate review must be completed
and the affirmed sentence duly executed.

10.  Title 10, United Stated Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Army Board for
Correction of Military Records 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
modify 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 and consideration has been
given to his overall record of service, which includes his awards and
decorations. However, they are not sufficiently mitigating to warrant the
relief requested.  His records indicate that he had NJP imposed against him
for being incapacitated for the proper performance of his duties as a
result of overindulgence in intoxicating liquor, and for failure to go to
his appointed place of duty on 17 October 1988, and for driving while drunk
on or about 19 August 1988.

4.  Considering the nature of the applicant's offenses, it does not appear
that the BCD that he was furnished is too severe.

5.  In order to justify correction of a military record the applicant must
show 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.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___EA __  ___RL  __  ___RM _  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.






                                  ______Eric Anderson________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002544                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060914                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19901023                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 3/SPCM CONVICTION               |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES         1.  675  |144.6800.0000/BCD                       |
|2.  678                 |144.6803.0000/SERIOUS OFFENSE           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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