RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20040006871


      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             |
|     |Ms. Prevolia Harper               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 dishonorable discharge be upgraded to
an honorable discharge.

2.  The applicant states he would like to express his deepest regrets for
his actions during a very unfortunate time in his life.  He further states
he accepts full responsibility for his actions and will never try to shift
the blame from himself.

3.  The applicant provides :

      a.  a self-authored letter, dated 11 August 2004.

      b.  a records check document from the Mobile, Alabama Police
Department.

      c.  a letter of support from the State of Alabama Department of
Veterans Affairs.

      d.  a resume pertaining to the applicant.

      e.  a letter of recommendation from America's Best Contacts and
Eyeglasses.

      f.  a letter of support from the pastor of the Mount Zion II Baptist
Church in Mobile, Alabama.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 2 July 1992.  The application submitted in this case is dated
23 July 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.


3.  The applicant enlisted in the Regular Army on 13 March 1978.  He
successfully completed basic and advanced individual training and was
awarded the military occupational specialty 42E20 (Optical Laboratory
Specialist).  He served continuously on active duty until his dishonorable
discharge on 2 July 1992.

4.  The complete details and circumstances which led to the applicant's
dishonorable discharge are not contained in his military records.  The
applicant's service personnel records do not contain all of the applicant's
separation processing documentation.  However, the applicant's records do
contain General Court-Martial Orders (GCMO).

5.  The applicant's record shows the highest rank he attained while serving
on active duty was sergeant /pay grade E-5.  While on active duty he earned
the Good Conduct Medal (3 awards), the Army Achievement Medal with an Oak
Leaf Cluster, Army Commendation Medal, the Army Service Ribbon, the
Noncommissioned Officer Professional Development Ribbon (level 2), the
Marksmanship Badge, and Overseas Service Ribbon.

6.  A DA Form 4187 (Personnel Action) dated 11 December 1989 shows the
applicant was reduced to specialist/pay grade E-4, pursuant to a field
grade Article 15 under the Uniform Code of Military Justice (UCMJ).

7.  A DA Form 4187 (Personnel Action) dated 5 June 1990 shows the applicant
was reduced to private/pay grade E-1, pursuant to a field grade Article 15,
UCMJ.

8.  On 4 December 1990, the applicant was convicted pursuant to his pleas
at a GCM for wrongfully distributing cocaine and larceny of property
belonging to the United States Army Criminal Investigation Command.

9.  The applicant's sentence consisted of forfeiture of all pay and
allowances, a fine of $200, confinement for four years (confinement in
excess of 3 years was suspended for 12 months with provisions for automatic
remission), and a dishonorable discharge.  The sentence was adjudged on 4
December 1990.

10.  On 11 March 1992, GCMO Number 20, Headquarters, I Corps and Fort
Lewis, directed that the Dishonorable Discharge be executed.  On 26 May
1992, the applicant was approved for parole, effective 1 June 1992.



11.  On 2 July 1992, the applicant received a dishonorable discharge under
the provisions of chapter 3 of Army Regulation 635-200, by reason of court-
martial.  He had completed 12 years, 8 months, and 1 day of creditable
active military service with 573 days of lost time due to confinement.

12.  The applicant submitted a self-authored letter in which he stated that
he realize he disgraced himself and the fellow Soldiers in his unit.  He
further stated he wishes that he could turn back the hands of time to right
the terrible wrong in his life. The applicant continued that after the
unfortunate incidents, he knew that it would be difficult to provide the
basics for his family.

13.  The applicant explained that through the support of his wife, mother,
and brother, he was able to hold his head up and drive forward in life and
become the citizen he knew he was meant to be.  He further explained that
moving forward has been extremely hard and having to accept less profitable
jobs than he was qualified for has been difficult.

14. The applicant further stated that through hard work and determination,
he was able to secure the position of General Manager at a major department
store. He continued that he is currently enrolled in college and
maintaining a GPA (Grade Point Average) of 3.89 and is also active in his
church and the Community Center.

15.  The applicant concluded that good Soldiers sometimes do stupid things
and his actions have already cost him a great deal in life.  He asks that
consideration be given to his request so he can continue his pursuit of the
American dream and continue to be an honest hard-working family provider.

16.  The applicant submitted a document from the Mobile, Alabama Police
Department which shows a search of arrest records pertaining to the
applicant was conducted.  This document also shows no arrest record was
found.

17.  The applicant submitted a letter of support from his Veterans Support
Officer, who stated he believed that the same circumstances under which the
applicant was discharged would be handled differently in today's military
and that the applicant would have received a lighter sentence.

18.  The applicant submitted an unsigned letter of support from the pastor
of the Mount Zion II Baptist Church who stated he had been associated with
the applicant for over 30 years.  He further stated that the applicant and
his family have been actively involved in the church youth program and
special events.



19.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides policy for the
separation of members with a dishonorable or bad conduct discharge pursuant
to an approved sentence of a general or special court-martial.  It states
that discharge will be accomplished only after the completion of the
appellate process and affirmation of the court-martial findings and
sentence.

20.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.

21.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently
meritorious to warrant an honorable discharge.  A characterization of under
honorable conditions may be issued only when the reason for the Soldier’s
separation specifically allows such characterization.

22.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10 of the United
States Code, section 1552, the authority under which this Board acts, the
Army Board for Correction of Military Records is not empowered to set aside
a conviction.  Rather it is 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 evidence of record confirms 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 the discharge appropriately characterizes the
misconduct for which he was convicted.  The applicant was a noncommissioned
officer who abused the trust and confidence placed in him.



2.  By law, the Army Board of Correction for Military Records may not
disturb the finality of a court-martial.  The Board is only empowered to
change a discharge if clemency is determined to be appropriate to moderate
the severity of the punishment imposed.

3.  The applicant's entire record of service and his post service conduct,
as attested to in the supporting character statements, were considered in
this case.
The applicant's good post-service conduct is commendable, but given the
seriousness of the offenses of which he was convicted, it is determined
that these factors are not sufficiently meritorious or mitigating to
warrant clemency in this case.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 July 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 1 July 1995.  However, the applicant provided evidence to
support his request for grant of clemency based on good post-service
conduct.  In view of the submitted evidence and since good post service
conduct could only accrue subsequent to discharge from the Army, it is in
the interest of justice to waive failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __RTD __  __LMD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined 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                 |AR20040006871                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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