RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 October 2006
      DOCKET NUMBER:  AR20060002991


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Marla J. N. Troup             |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. John G. Heck                  |     |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 Discharge (HD).

2.  The applicant states he received a BCD, but was assigned to the Fort
Riley, KS Jail for a period of time and his BCD was supposed to be
upgraded.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 January 1986.  The application submitted in this case
is dated
2 February 2006.

2.  The applicant enlisted in the Regular Army on 1 November 1974.  On
28 February 1981, while stationed in Germany, the applicant reenlisted in
the Regular Army in the grade of E-5 for a period 4 years after having
served on active duty previously.

3.  On 8 June 1984, the applicant was convicted in Germany by a General
Court-Martial for dereliction in the performance of his duty on 19 January
1984; wrongfully and unlawfully subscribing under oath a false statement on
20 January 1984; wrongfully possessing one marihuana cigarette on 19
January 1984; wrongfully using marihuana on 19 January 1984; and wrongfully
distributing marihuana on 19 January 1984.  The sentence included a Bad
Conduct Discharge, confinement for 1 year, reduction to pay grade E-1, and
to forfeit all pay and allowances.  He was transferred to the US Army
Correctional Activity (USACA), Fort Riley, KS.

4.  On 25 September 1984, the General Court-Martial Convening Authority
approved the sentence.

5.  On 18 September 1985, the U.S. Army Court of Military Review set aside
specification 2 of charge II, subscribing under oath a false statement, and
that specification was dismissed.  The remaining findings of guilty and the
sentence were affirmed.  No further appellate relief was grated to the
applicant.

6.  On 9 January 1986, a Supplemental General Court-Martial Order indicated
the modified sentence had been affirmed and directed that said sentence
would be duly executed.  The portion pertaining to confinement had been
served.
7.  On 28 January 1986, the applicant was discharged with a Bad Conduct
Discharge.  He had 4 years, 1 month, and 28 days of active Federal
creditable service.  Additionally, he had 273 days of lost time and 327
days of Excess Leave.

8.  The Military Justice Act of 1983 (Public Law 98-209), provides, in
pertinent part, that military correction boards may not disturb the
finality of a conviction by court-martial.  Court-martial convictions stand
as adjudged or modified by appeal through the judicial process.  In
accordance with Title 10, United States Code, Section 1552, the authority
under which this Board acts, the Army Board for Correction of Military
Records is not empowered to change a discharge due to matters which should
have been raised in the appellate process, rather it is only empowered to
change the severity of the sentence imposed in the court-martial process 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.  The applicant's discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  The character of the discharge
is commensurate with the applicant's overall record of military service for
this enlistment period.

2.  Even though the applicant may have had good service and could have been
an asset to the military, that good service was diminished by his
conviction for serious offenses by a General Court-Martial.  Therefore,
clemency is not warranted.

3.  The U. S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant submits a DD Form 149 requesting a change in discharge.
Changes may be warranted if the Board determines that the characterization
of service or the reason for discharge were improper, or inequitable, or
both.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mjnt__  __rr____  __jgh___  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.



                                        Marla J. N. Troup
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002991                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061026                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |19860128                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 3                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |106.0008                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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