RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 May 2004
      DOCKET NUMBER:   AR2004100235


      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. Wanda L. Waller               |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Mr. Joe Schroeder                 |     |Member               |
|     |Mr. William Powers                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 clemency in the form of a
general discharge be granted.

2.  The applicant states, in effect, that he feels there were matters not
taken into consideration.  He contends that he started doing cocaine in
Hawaii because it was not quite as intense as Fort Bragg, North Carolina.
Several soldiers would pool their money together and he would go and make
the purchase because he knew where and from whom to get the drugs.  Someone
tested positive during a drug screening and implicated him.  He was
investigated and agreed to cooperate in the arrest of the drug dealer.  He
states that he put his wife, unborn child and himself in danger.  He did it
thinking it would help his situation and maybe get some leniency.  However,
he was not prepared for the sentence that he was adjudged.  He also states
that when he was out of the military he was contacted by the Honolulu
Police Department to testify on the case of the “defender” and he agreed to
do so.

3.  The applicant provides a letter of explanation, dated 5 September 2003.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 March 1989.  The application submitted in this case is dated
22 September 2003.

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 limitation 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 U.S. Army Reserve on 9 August 1982 for a
period of 6 years under the delayed entry program.  He enlisted in the
Regular Army on 21 October 1982 for a period of 3 years.  He successfully
completed basic training and advanced individual training in military
occupational specialty 94B (food service specialist).  He reenlisted on 12
September 1985 for a period of 3 years.   The applicant attained the rank
of sergeant on 27 August 1985.  On
17 December 1985, he extended his three-year enlistment for 6 months.
During his service he was awarded the Army Commendation Medal (for
deployment to Grenada), the Army Achievement Medal, and the Army Good
Conduct Medal.

4.  On 15 January 1988, contrary to his pleas, the applicant was convicted
by a general court-martial of two specifications of distributing cocaine
(total amount of one gram) and using cocaine.  He was sentenced to be
discharged from the service with a dishonorable discharge, reduction to E-
1, forfeiture of $370 pay per month for 12 months and confinement for one
year.  On 2 May 1988, the convening authority approved the sentence.
Effective 14 October 1988, a bad conduct discharge was substituted for the
dishonorable discharge by the United States Army Correctional Activity
Commander at Fort Riley, Kansas.  The applicant was placed on excess leave
on 20 October 1988.

5.  On 24 October 1988, the U.S. Army Court of Military Review affirmed the
findings of guilty and the sentence.  The bad conduct discharge was ordered
executed on 6 March 1989.

6.  Accordingly, the applicant was discharged on 22 March 1989 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  He was issued a bad conduct discharge.  He had served 5 years, 7
months and 22 days of total active service with 280 days of lost time due
to confinement.

7.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Paragraph 3-11 of this regulation states that a
soldier will be given a bad conduct discharge pursuant only to an approved
sentence of a general or special court-martial.  The appellate review must
be completed and the affirmed sentence ordered duly executed.

8.  Section 1552(f), Title 10, United States Code states that the ABCMR can
only review records of court-martial and related administrative records to
correct a record to accurately reflect action taken by reviewing
authorities under the Uniform Code of Military Justice (UCMJ) or to take
clemency action.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions relate to evidentiary and procedural
matters that should have been adjudicated in the court-martial appellate
process and furnish no basis for recharacterization of the discharge.



2.  The evidence of record shows the applicant had one general court-
martial conviction and 280 days of lost time.  He was a sergeant at the
time using and distributing cocaine.  As a result, his record of service
was not satisfactory.  Therefore, clemency in the form of a general
discharge is not warranted in this case.

3.  The applicant has failed to show through the evidence submitted with
his application or the evidence of record that the actions taken in his
case were in error or unjust.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 22 March 1989; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 21 March 1992.  However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

SK______  JS______  WP______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that 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.



            __Stanley Kelley   __________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100235                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040504                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19890322                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |