RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 JULY 2005
      DOCKET NUMBER:  AR20040007681


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Mr. Lawrence Foster               |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that the punishment was too severe for the charges
against him, especially in light of today’s standards, and he was not
properly advised of his legal rights.  He has been a good citizen since
leaving the service.

3.  He states that the reason for his dishonorable discharge was his arrest
for drugs, but his records will show that he was set up and entrapped.  He
had a washing machine delivered by an individual who used to be in his unit
but who had gotten out of the military and stayed in the area.  He did not
charge him for the delivery and the hook up, but asked that he do him a
favor and get him some pot.  At the time he knew a sergeant in his company
that had some pot, and when he went to get some from him he was arrested.
The individual who delivered his washer had been arrested previously for
drugs and was setting up other people to work off his time.  He has learned
his lesson and will never do anything like that again.

4.  The applicant provides a copy of his denial for benefits from the
Department of Veterans Affairs (VA), a radiological report and a
radiographic report concerning a back injury, a statement in support of his
claim to the VA, a copy of his DD Form 214 (Certificate of Release or
Discharge from Active Duty), in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted the Regular Army on 24 June 1981, for a period
of
4 years.  He served in Korea from February 1983 to February 1984.

2.  The applicant was placed on the weight control program in March 1984.
On
7 December 1984, a bar to reenlistment was approved, because he had made no
significant progress in the program.

3.  On 9 April 1985, he was convicted by a general court-martial of four
specifications of the wrongful distribution of marihuana on 20 November
1984,
26 November 1984, 30 November 1984 and 14 December 1984.  He was sentenced
to reduction to Private E-1, forfeiture of all pay and allowances,
confinement for 90 days, and a dishonorable discharge.


4.  On 11 June 1985, the convening authority approved the part of the
sentence that included 90 days confinement, reduction to E-1, and total
forfeiture of all pay and allowances, but disapproved the dishonorable
discharge and instead authorized a bad conduct discharge.  On 13 March
1986, the convening authority took final action on the applicant’s case,
and erroneously approved a dishonorable discharge.

5.  On 30 September 1985, the United States Army Court of Military Review
affirmed the findings and sentence.

6.  General Court-Martial Order Number 3, dated 13 March 1986, ordered the
execution of the dishonorable discharge, noting that the sentence
pertaining to confinement had been served.

7.  On 26 March 1986, the applicant received a dishonorable discharge under
the provisions of Army Regulation 635-200, section IV, as a result of court-
martial.  His DD Form 214, indicates he had 3 years, 9 months and 14 days
of active service and 73 days of lost time.

8.  The applicant submits a statement in support of his claim to the VA in
which he states that during the summer of 1984, he was injured in a
motorcycle accident and was hospitalized for several weeks in Biloxi,
Mississippi.  He was told he had a 60 percent loss on the right side and a
40 percent loss on the left side due to five compression fractures in his
spine.  The applicant was attempting to show that as a result of his
accident he was unable to make progress in the weight control program.

9.  The applicant submitted radiological reports and radiographic reports
in an attempt to show spinal problems which resulted from a motorcycle
accident he had prior to his discharge.  Reports completed prior to his
discharge show no evidence of fracture or spondylolisthesis.  His pelvis,
including both hips failed to demonstrate any evidence of fracture or
dislocation, and no calcifications in joints, tendons or bursa.

10.  Title 10, United States Code, section 1552, as amended, precludes any
action by this Board which would disturb the finality of a court-martial
conviction.






11.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 3, paragraph
13-10, provided that a dishonorable discharge will be issued pursuant to an
approved sentence of a general court-martial, after completion of the
appellate review, and the sentence has been affirmed and ordered duly
executed.

DISCUSSION AND CONCLUSIONS:

1.  There is a basis for partial relief in this case.  The convening
authority approved only so much of the sentence as provided for a bad
conduct discharge; therefore the Order reflecting final action on the
applicant’s case, as well as the applicant’s DD Form 214 should be changed
to reflect a bad conduct discharge.

2..  There is no evidence in the available records to substantiate the
applicant’s claim that he was not properly advised of his legal rights, or
that his arrest was the result of his being set up or entrapped.

3.  The applicant’s attempt to justify his failing to make progress in the
Army Weight Control Program, as a result of a motorcycle accident, has no
bearing on his discharge.  He was discharged as a result of court-martial
action and not the Army’s Weight Control Program.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___TK __  ___JM  __  __LF ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by showing the applicant
received a bad conduct discharge.



2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading the applicant’s discharge to honorable.




                                  _____ Ted Kanamine______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040007681                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050719                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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