RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 November 2006
      DOCKET NUMBER:  AR20060004275


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Robert W. Soniak              |     |Member               |
|     |Mr. David W. Tucker               |     |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, upgrade of his Bad Conduct
Discharge.

2.  The applicant states, in effect, that he has changed his life and has
been a positive role model and mentor for both high school students and
state and federal prisoners.  He also states that he has not been in any
trouble for 10 years and now performs prison ministry.  The applicant adds,
in effect, that at age
20 he was young and immature, that he has paid more than his price for the
crime, and would like to put the matter behind him.  He further states that
he has made amends in his heart for his past actions, is now positively
impacting the lives of others in his community, and asks for relief from
this Board.

3.  The applicant provides four character reference letters, dated February
2006; one letter of recommendation for a position, dated 16 February 2006;
and a Warriors for Christ Prison Ministry Certificate, dated 7 January
2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 25 May 1979, the date of his discharge.  The application
submitted in this case is dated 9 March 2006.

2.  On 8 August 1975, the applicant enlisted in the Regular Army for a
period of
3 years.  He was trained in, awarded, and served in military occupational
specialty (MOS) 75B (Unit Clerk).  The applicant’s records show that he
served 13 months in the Republic of Korea from 23 January 1976 through 18
February 1977.  The highest grade the applicant attained was pay grade E-4.

3.  On 16 March 1978, the applicant was convicted at a special-court
martial convened by Headquarters, 1st Infantry Division, Fort Riley,
Kansas, for theft by means of force and violence to an individual, 2
specifications; communicating a threat to kill to obtain monies from an
individual, 2 specifications; and communicating a threat to kill an
individual.  His punishment was reduction to the rank of private/pay grade
E-1, confinement at hard labor for 5 months, forfeiture of $225.00 per
month for 6 months, and a bad conduct discharge.  The sentence was approved
by the convening authority on 13 April 1978.

4.  The applicant was confined by military authorities from 27 January 1978
through 5 February 1978 and imprisoned from 16 March 1978 through 16 July
1978.  The applicant was in an excess leave status without pay and
allowances from 17 July 1978 through 25 May 1979.
5.  On 17 October 1978, the U.S. Army Court of Military Review reviewed and
affirmed the approved findings of guilty and the sentence.  On 19 December
1978, the applicant petitioned the U.S. Court of Military Appeals for
review of his conviction and sentence.  On 16 March 1979, the Court denied
the applicant's petition to grant a review.  On 19 March 1979, a
supervisory review was completed and the sentence was duly executed.

6.  Headquarters, U.S. Disciplinary Barracks, U.S. Army Combined Arms
Center, Fort Leavenworth, Kansas, Orders 99-15, dated 22 May 1979, ordered
the discharge of the applicant with a Bad Conduct Discharge.

7.  On 25 May 1979, the applicant was discharged with a Bad Conduct
Discharge under the provisions of Army Regulation 635-200 (Personnel
Separations - Enlisted Personnel), paragraph 11-2, as a result of a court-
martial.  He had completed 3 years, 5 months, and 12 days of creditable
active military service.  The applicant's DD Form 214 issued upon his
discharge reflects that the
U.S. Army separated the applicant as a result of a sentence by a court-
martial.  However, the DD Form 214 shows the applicant's character of
service as under other than honorable conditions, not as a Bad Conduct
Discharge.

8.  On 12 February 1985, the Army Discharge Review Board determined that
the applicant’s discharge was proper and equitable and it voted to deny the
applicant’s request for an upgrade of his discharge.

9.  In support of his application, the applicant provides 4 character
reference letters, 1 letter of recommendation for a position, and a
certificate of ministry.  These documents, in pertinent part, attest to the
applicant's good character, his involvement in his church and in prison
ministry, and the positive impact he has had on the lives of others by
sharing his life's experiences.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 (Dishonorable and Bad Conduct
Discharge), in effect at the time, provided the policies and procedures for
separating members with a dishonorable or bad conduct discharge.  It
stipulated that a Soldier would be given a bad conduct discharge pursuant
only to an approved sentence of a general or special court-martial, after
completion of appellate review and after such affirmed sentence has been
ordered duly executed.

11.  Title 10 of the United States Code, section 1552 as amended, does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant’s trial by court-
martial was warranted by the gravity of the offenses for which he was
charged.  Conviction and discharge were effected in accordance with
applicable law and regulations and his rights were protected throughout the
court-martial process.

2.  The evidence of record shows that the applicant was nearly 21 years old
at the time of all the incidents which resulted in his court-martial.
There is no evidence that indicates that the applicant was any less mature
than other Soldiers of the same age who successfully completed military
service.

3.  The Board notes that the U.S. Army mistakenly characterized the
applicant's service as "under other than honorable conditions" on the
applicant's DD Form 214.  This error by the U.S. Army inadvertently
upgraded his discharge from a punitive discharge to an administrative one,
thereby granting the applicant a form of clemency.

4.  The Board notes the letters of personal support attesting to the
applicant’s good character and contributions to his church and community
over the past few years.  While his conduct is noteworthy, good post-
service conduct by itself is not sufficient to overcome the applicant's
military record of indiscipline, or a basis for upgrading his discharge.

5.  By law, any redress by this Board of the finality of a court-martial
conviction is prohibited.  The Board is only empowered to change a
discharge if clemency is determined to be appropriate to moderate the
severity of the sentence imposed.

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 U.S. Army, through an
oversight, has already upgraded the applicant's Bad Conduct Discharge to an
under other than honorable conditions discharge.  The applicant has failed
to submit evidence that would justify any further relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JCR___  __RWS _  __DWT__  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.




                                        _Jeffrey C. Redmann_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060004275                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061116                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19790525                                |
|DISCHARGE AUTHORITY     |AR 635-200, Paragraph 11-2              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.7200.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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