RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060012289


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Scott Faught                  |     |Member               |
|     |Mr. Roland Venable                |     |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.

2.  The applicant states, in effect, that his court-martial conviction and
BCD were unjust because officials at the time did not take into account the
stress he was under and the trauma he was suffering from his exposure to
combat, the life threatening environment he was exposed to, and the deaths
of his fellow Soldiers in arms.  He goes on to state that he was under a
great deal of stress at the time and nothing was done to help him.  He
further states that he loves his country and the country should give back
some of what it took away from him.

3.  The applicant provides a seven-page explanation of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 May 1971.  The application submitted in this case is dated
23 August 2006.

2.  The applicant was born on 14 June 1948 and was inducted with a moral
waiver for robbery, joyriding, burglary and conspiracy and parole
violations on 10 January 1969.

3.  He was transferred to Fort Lewis, Washington to undergo his basic
combat training (BCT).  On 20 February 1969, nonjudicial punishment (NJP)
was imposed against him for being disrespectful in language towards a
superior noncommissioned officer.  His punishment consisted of a forfeiture
of pay and extra duty.

4.  He completed his BCT and was transferred to Fort Benning, Georgia to
undergo his advanced individual training (AIT) as a light weapons
infantryman.

5.  On 13 June 1969, NJP was imposed against him for being absent without
leave (AWOL) from 30 May to 10 June 1969.  His punishment consisted of a
reduction to the pay grade of E-1, a forfeiture of pay, extra duty, and
restriction.

6.  Upon completion of his AIT he received orders transferring him to the
Overseas Replacement Detachment at Oakland, California for assignment to
Vietnam.  He was ordered to report on 14 August 1969 and failed to do so.
He was reported as AWOL and remained absent until he was returned to
military control on 20 August 1969.  The record is absent of any evidence
of disciplinary action taken for that offense.

7.  He was transferred to Vietnam on 24 August 1969 and was assigned to
Company D, 1st Battalion, 52nd Infantry Regiment, 198th Infantry Brigade
for duty as a rifleman.

8.  On 11 February 1970, the applicant was convicted, contrary to his
pleas, by a special court-martial of missing movement on 6 January 1970, of
behaving with disrespect towards a superior commissioned officer, of
disobeying a lawful command from a superior commissioned officer, and for
wrongfully communicating a threat to injure a superior commissioned
officer.  He was sentenced to confinement at hard labor for 6 months, a
forfeiture of pay for 6 months, reduction to the pay grade of E-1, and a
BCD.  The record of trial was forwarded to the Judge Advocate General of
the Army for review by the Court of Military Review.

9.  On 27 April 1971, orders were published at Fort Lewis indicating that
charge V and its specifications (wrongfully communicating a threat to
injure a superior commissioned officer) had been dismissed and that the
remaining findings of guilty had been affirmed.  The order directed that
the sentence be duly executed.

10.  On 10 May 1971, the applicant was discharged pursuant to a duly
reviewed and affirmed court-martial conviction.  He had served 1 year, 6
months, and 18 days of total active service and had approximately 282 days
of lost time due to imprisonment and AWOL.  He was awarded the Combat
Infantryman Badge, the Vietnam Service Medal, the Republic of Vietnam
Campaign Medal, and the National Defense Service Medal.

11.  On 10 November 1972, the applicant authorized officials at the
District Court Probation Department, Denver Colorado, to obtain copies of
his military records as background information before imposing penalty
following his conviction and to be used in his application for probation.
At the time of his application to the Board he was incarcerated by the
Texas Department of Criminal Justice.

12.  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 have been noted; however, he has failed to
show through evidence submitted with his application or the evidence of
record, sufficient evidence to warrant an upgrade of his discharge.

4.  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

__JA____  __SF ___  __RV____  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 Anderholm______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20060012289                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070306                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |1971/05/10                              |
|DISCHARGE AUTHORITY     |SPCM . . . . .                          |
|DISCHARGE REASON        |SPCM                                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |675/A68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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