RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 August 2005
      DOCKET NUMBER:  AR20040008311


      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. David S. Griffin              |     |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 bad conduct discharge be upgraded to an
honorable discharge.

2.  The applicant states that:

      a.  he turned 17 years old while in basic training at Fort Benning,
Georgia;

      b.  a sworn statement from a certified doctor stating that the
applicant was on lysergic acid diethylamide (LSD) at the time of his
offense and was not allowed to be introduced into evidence;

      c.  the undercover agent who set him up was in jail before his case
went to trial;

      d.  the charges against him were dismissed, then four months later he
was back in court for the same offense;

      e.  while confined at the U.S. Disciplinary Barracks (USDB) at Fort
Leavenworth, Kansas, he was told he may have a bipolar disorder and that
two and a half years later the diagnosis was confirmed;

      f.  he is employed as a machine technician and currently going to
school for automotive technician after which he plans on going to Bible
College;

      g.  wants his honor back and his benefits under the G.I. Bill
restored; and

      h.  he can pass any mental examination and has not been on any
medication for 2 years.

3.  The applicant provides a copy of:

      a.  a Notice of Appeal that shows the Government intended to appeal
the Court's dismissal of all charges and specifications in US. V.
[applicant];

      b.  a Minnesota Multiphasic Personality Inventory (psychological
test; University of Minnesota Press) (MMPI-2) Report, dated 10 March 1993,
that indicates Bipolar Disorder as one diagnostic consideration; and

      c.  a record, dated 21 May 1993, showing the applicant participated
in a positive manner in sessions concerning criminal behavior.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 November 1994, the date of his discharge.  The application
submitted in this case is dated 28 September 2004 and was received on 12
October 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's military records show that he enlisted for 3 years and
14 weeks on 27 June 1990.  He successfully completed basic combat and
advanced individual training and was awarded the military occupational
specialty 11B10 (light weapons infantryman).  The highest grade the
applicant held was private first class/pay grade E-3.

4.  The applicant's Record of Trial shows that:

      a.  on 1 September 1992, court-martial charges were preferred against
the applicant for wrongful use of LSD, wrongfully possession of marijuana,
four specifications of wrongful distribution of LSD, and conspiracy to
distribute LSD;

      b.  on 14 January 1993, the military judge dismissed the charges,
without prejudice, based on violation of Rule 707 (Speedy Trial), Manual
for Courts-Martial;

      c.  on 1 February 1993, the military judge entertained a motion from
the government requesting reconsideration of the ruling dismissing the
charges for a speedy trial; and

      d.  on 5 February 1993, the military judge reversed his prior ruling
and reversed the dismissal of the charges without prejudice, in that Rule
707 of the Manual for Courts-Martial was not violated.

5.  On 18 February 1993, the applicant was convicted by general court-
martial (GCM) for wrongful possession of marijuana, attempted distribution
of LSD, and wrongful distribution of LSD.  His sentence consisted of
confinement for
42 months, forfeiture of $700 pay per month for 42 months, reduction to pay
grade E1, and a bad conduct discharge.  The convening authority approved
the sentence on 7 June 1993.

6.  On 28 February 1994, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence as approved by the
convening authority.

7.  On 21 September 1994, the United States Court of Military Appeals
declined to review the decision of the United States Army Court of Military
Review.

8.  On 25 November 1994, the applicant was discharged as a result of court-
martial - other, with a bad conduct discharge.  He had served 2 years, 7
months, and 21 days active service with 225 days time lost during his term
of enlistment.  He also had 416 days time lost after his expiration of term
of service (ETS).

9.  Item 5 (Date of Birth) of the applicant's DD Form 214 (Certificate of
Release or Discharge from Active Duty) with a separation date 25 November
1994 shows the applicant's date of birth as 6 August 1972.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, Section IV, establishes
policy and procedures for separating members with a dishonorable or bad
conduct discharge; and provides that a Soldier will be given a bad conduct
discharge pursuant only to an approved sentence of a general or special
court-martial; and that the appellate review must be completed and affirmed
sentence ordered duly executed.

11.  Rule 707 (Speedy trial) of the Manual for Courts-Martial states, in
pertinent part, that the accused shall be brought to trial within 120 days
after the earlier of: preferral of charges, the imposition of restraint, or
entry on active duty.

12.  Court-martial convictions stand as adjudged or modified by appeal
through the judicial process.  In accordance with Title 10, 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 applicant contends that his bad conduct discharge should be
upgraded.

2.  The applicant has not submitted evidence to substantiate his
contentions that he was on LSD when he committed his offenses, that the
agent who set him up was in jail prior to his trial, or that he was
diagnosed with a bipolar disorder after he was discharged.  These
contentions are insufficiently mitigating to upgrade a properly issued
discharge.

3.  The evidence shows the applicant's age was 17 years and 10 months old
at the time of his enlistment.  Therefore, the applicant's contention that
he turned
17 years old while in basic training is not supported by the evidence of
record.

4.  The circumstances surrounding the applicant's offenses were reviewed in
detail at his general court-martial.  The general court-martial record of
trial was reviewed by the U.S. Army Court of Military Review and found
legally sufficient. The applicant has not submitted any evidence or
argument which would support his contentions of irregularity.

5.  The evidence shows that the applicant’s trial by court-martial was
warranted by the gravity of the offenses with 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.

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

7.  The applicant's statements concerning his post service achievements and
conduct are noted.  However, good post service conduct alone is not
normally sufficient for upgrading a properly issued discharge.

8.  The applicant did not submit any evidence in support of his request for
upgrade.  The applicant’s record of service was carefully considered.
However, given the seriousness of the offenses for which he was convicted,
his service record was not considered sufficiently meritorious to warrant
clemency in this case.  As a result, there is no evidentiary or equitable
basis upon which to support the applicant’s request to upgrade his
discharge at this time.

9.  The ABCMR does not correct records solely for the purpose of
establishing eligibility for benefits.  In addition, granting veteran's
benefits is not within the purview of the ABCMR and any questions regarding
eligibility for veteran's  benefits should be addressed to the Department
of Veterans Affairs (DVA).

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 November 1994, the date of his
separation from the Army; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 24 November
1997.  Although the applicant is requesting a grant of clemency based on
good post-service conduct, he has not provided any evidence of post-service
achievement or good conduct. In the absence of such evidence, it is not in
the interest of justice to excuse the applicant's failure to timely file
within the 3-year statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___jea __  ___rtd___  ___lmd __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board concluded
that the overall merits of this case are insufficient as a basis for
correction of the records of the individual concerned.

2.  As a result, the Board further determined there is no evidence provided
which shows it would be in the interest of justice to excuse the
applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  ________James E. Anderholm___
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040008311                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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