RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 October 2006
      DOCKET NUMBER:  AR20060003872


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Mr. Bernard P. Ingold             |     |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, in effect, that his bad conduct discharge be
upgraded.

2.  The applicant states, in effect, that he received a bad conduct
discharge because he had an alcohol problem and he got into fights.  He
states that he did not know he was an alcoholic at age 18, nor did he know
there was help for him. He also states that he was discharged 23 years ago,
and he has refrained from drinking alcohol for 10 years.  He has helped
many others with their problems, including the homeless, service members,
and veterans.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the U.S. Army
on  
1 October 1981.  He successfully completed basic combat training and
advanced individual training and was awarded the military occupational
specialty  
13B10 (Cannon Crewman).

2.  On 13 July 1982, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ), for assaulting a
Soldier and making a false statement by accusing a Soldier of stealing a
watch.  His punishment consisted of reduction to private/pay grade E-1
(suspended until  
13 October 1982), and 14 days of extra duty and restriction.

3.  On 7 September 1982, the applicant accepted NJP under Article 15, UCMJ,
for being disrespectful in language towards a noncommissioned officer (NCO)
and wrongfully communicating a threat to injure an NCO.  His punishment
consisted of a forfeiture of $125.00 for one month (suspended until 7
December 1982), and 14 days of extra duty and restriction.

4.  On 6 January 1983, the applicant was convicted by a special court-
martial for unlawfully striking a Soldier twice, disobeying a lawful
command, and assaulting a Soldier with a means likely to produce grievous
bodily harm.  His sentence consisted of confinement at hard labor for two
months, a forfeiture of $382.00 pay per month for two months, reduction to
the rank of private/pay grade E-1, and a bad conduct discharge.

5.  On 15 March 1983, the convening authority approved only so much of the
forfeiture of pay as follows:  $200.00 pay per month for two months.  The
remainder of the sentence was approved as adjudged.

6.  On 31 August 1983, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence.

7.  On 16 December 1983, the applicant's bad conduct discharge was ordered
to be executed.

8.  On 23 January 1984, the applicant was discharged as a result of a court-
martial.  He had completed 2 years, 1 month, and 28 days of active service.
 He also had a total of 56 days time lost.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for 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, Section IV, establishes
policy and procedures for separating members with a dishonorable or bad
conduct discharge.  It provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and the
affirmed sentence ordered duly executed.

11.  Court-martial convictions stand as adjudged or as 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 (ABCMR) 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.  The applicant requests that his bad conduct discharge be upgraded.

2.  Although no evidence was submitted to substantiate the applicant’s
contentions, the Board accepts that the applicant had a drinking problem
while he was on active duty, has since quit drinking, and has helped others
while sober.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

4.  Any relief by this Board regarding the finality of a court-martial
conviction is prohibited by law.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

5.  The applicant’s problems with alcohol and his post-service conduct are
insufficiently mitigating to warrant clemency in view of his history of
repeated, violent misconduct while on active duty.

6.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement or to show clemency
is warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jea___  ___jam__  ____bpi_  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.




                                  _________James E. Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060003872                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061031                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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