RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 December 2006
      DOCKET NUMBER:   AR20060006451


      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:

|     |Mr. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dale DeBruier                 |     |Member               |
|     |Mr. Larry Racster                 |     |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 discharge under other than
honorable conditions be upgraded to honorable.

2.  The applicant states, that he is a recovering alcoholic and addict who
has been sober for 13 years.  He goes on to state that during the time he
was in the military he was ignorant to the fact that he was one and the
Army did nothing to help him find out except to lock him up and give him a
bad conduct discharge (BCD).  Since that time his whole life has changed.
He continues by stating that he works for $6.33 an hour rather than to
steal, kill, or sell drugs, that he is
18 hours short of receiving his associates degree in psychology, but does
not have the funds.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 February 1976.  The application submitted in this case is
dated 26 April 2006.

2.  The applicant enlisted in Houston, Texas on 17 November 1972 for a
period of 3 years and assignment to Fort Hood, Texas.  He completed his
basic combat training at Fort Polk, Louisiana, and was transferred to Fort
Hood to undergo his training and assignment as an infantry indirect fire
crewman.

3.  On 14 June 1973, nonjudicial punishment (NJP) was imposed against him
for being absent without leave (AWOL) from 1 June to 4 June 1973.  His
punishment consisted of extra duty and restriction.

4.  On 22 August 1973, NJP was imposed against him for being absent from
his place of duty.  His punishment consisted of a verbal reprimand.

5.  On 25 February 1974, NJP was imposed against him for sleeping on his
guard post.  His punishment consisted of extra duty.

6.  On 10 April 1974, NJP was imposed against him for being AWOL from
29 March until 8 April 1974.  His punishment consisted of a reduction to
the pay grade of E-2, a forfeiture of pay, extra duty, and restriction.

7.  On 1 July 1974, NJP was imposed against him for sleeping on guard duty.
 His punishment consisted of extra duty and restriction, both of which were
suspended for 3 months.

8.  The applicant was arrested and confined by civilian authorities from
24 February to 12 March 1975.  However, the record is silent as to any
punishment imposed for that absence.

9.  On 20 August 1975, he was convicted pursuant to his pleas by a special
court-martial of assault by unlawfully striking another Soldier in the face
and being AWOL from 2 June to 20 July 1975.  He was sentenced to
confinement at hard labor for 4 months, reduction to the pay grade of E-1,
a forfeiture of pay, and a BCD.  He was transferred to the United States
Disciplinary Barracks at Fort Leavenworth, Kansas, to serve his
confinement.

10.  On 21 November 1975, he was restored to duty pending completion of the
appellate review and was transferred to Fort Sill, Oklahoma.

11.  The applicant went AWOL on 16 December 1975 and remained absent until
he was returned to military control on 23 December 1975.  Nonjudicial
punishment was imposed against him for that offense.  His punishment
consisted of a forfeiture of pay.

12.  He again went AWOL on 9 January 1976 and remained absent until he
returned on 13 January 1976.  On 14 January 1976, he was apprehended for
possession of a partially burned cigarette suspected of containing
marijuana.  He was released to the custody of his unit.  There is no
indication of any punishment for those offenses in the available records.
However, on 20 January 1976, the applicant was placed on indefinite excess
leave pending the outcome of his appellate review.

13.  On 27 January 1976, notification was sent to Fort Sill informing the
Staff Judge Advocate that the United States Court of Military Appeals had
denied the applicant’s petition for a grant of review.

14.  On 5 February 1976, Special Court-Martial Order Number 10, United
States Army Field Artillery Center and Fort Sill stated that the findings
and sentence, as approved by the convening authority, had been affirmed and
directed that the unexecuted portion of the sentence (BCD) be executed;
except that the portion of the sentence pertaining to a forfeiture of pay
was remitted.

15.  On 20 February 1976, orders were published at Fort Sill which directed
the BCD of the applicant effective 20 February 1976 and the issuance of a
DD Form 259A (BCD Certificate).

16.  Accordingly, the applicant was discharged pursuant to a duly reviewed
and affirmed court-martial conviction on 20 February 1976.  He had served 2
years, 7 months, and 14 days of active service during his enlistment and
had 231 days of lost time due to AWOL and confinement.  However, the report
of separation (DD Form 214) issued at the time of his discharge indicates
that he was issued an Undesirable Discharge Certificate (DD Form 258A)
instead of a BCD Certificate (DD Form 259A).

17.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that Board’s 15-year statute of limitations.

18.  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 regarding his discharge have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to the seriousness of his offenses and his overall undistinguished
record of service.

4.  It is noted that the applicant was issued a DD Form 214 at the time of
his discharge that reflects that he was issued an Undesirable Discharge
Certificate instead of a BCD Certificate.  However, it has been a long-
standing policy of the Board that applicant’s will not be made worse off
than when they applied to the Board.  Therefore, the Board will not direct
that the administrative error be corrected or that he be issued a BCD
Certificate in lieu of the Undesirable Discharge Certificate he was issued.
 However, the Board finds that his service does not warrant the clemency he
is seeking.

5.  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

__RD ___  __DD___  ___LR___  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.




                                  _____Richard Dunbar____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006451                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061207                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |1976/02/20                              |
|DISCHARGE AUTHORITY     |spcm. . . . .                           |
|DISCHARGE REASON        |Spcm                                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/a68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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