RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2004
      DOCKET NUMBER:  AR2004102015


      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. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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, in effect, to correct his records by upgrading
his bad conduct discharge to an honorable discharge.

2.  The applicant states, in effect, that he is truly sorry and apologizes
for the incidents and inconveniences that were caused to the government as
the result of his actions.  He continues that his wrong choices and
decisions compelled him to do the actions which resulted of being
discharged.

3.  The applicant opined that he made some terrible choices in his life
while in the military.  The applicant continues that he was a very troubled
young man; who did not graduate from high school; and got married at a
young age because his parents could not provide continued financial
support.  The applicant states that when his marriage started to tumble
into a world of disenchantment and turmoil, he decided to join the military
to save his marriage.

4.  The applicant further states that when his former wife informed him of
the affair she was having with his sister's husband, the news devastated
him and caused him to start drinking.  The applicant continues that he felt
he was going to die from alcohol, suicide, or get killed because he could
not deal with the situation.

5.  The applicant opined that he does not understand how a "one-time"
incident [marijuana charge] could be so harsh to have been issued a bad
conduct discharge.  The applicant states that he firmly believes he was a
victim of someone's arrogance and was not given the chance to make amends
of any wrongdoing that he might have done.  He also states that neither
counseling nor medical opportunities were offered to him.

6.  The applicant further states that the facts surrounding his separation
consisted of inaccuracies in spelling of marijuana, sentence structure,
unprofessional administrative procedures, and grammatical errors.

7.  The applicant requests that his case receive a thorough review and that
his request for a discharge upgrade be granted.

8.  The applicant provides in support of his application a statement from
the Orange County Veterans Service Office, dated 29 December 2003; a self-
authored letter, dated 29 December 2003; a statement from his wife, dated
7 April 2003; a copy of his marriage license, dated 25 October 1982; a copy
of his children's birth certificates; a copy of a Certificate of License
(Gospel Ministry); a criminal records check from the Orange Police
Department; eight letters of support; certificates of training; employment
information and verification; certificate of appreciation; a copy of his DD
Form 214 (Certificate of Release or Discharge from Active Duty); and
approximately 75 pages of his Record of Trial.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant be given a second chance by
granting an upgrade of his bad conduct discharge to an honorable discharge.

2.  Counsel states, in effect, that the applicant was devoted to his family
and actively involved in his religious beliefs.  Counsel continues that he
patiently reviewed the applicant's Record of Trial, and recorded the
misspelled words, the inaccuracies of the use of sentence structure, the
inconsistencies of applying various principles of the Uniform Code of
Military Justice (UCMJ) that continued throughout the record.

3.  Counsel further stated, in effect, that the applicant's records did not
show that he was given professional counseling by any member of his peers
or superiors in the military.  Counsel concluded that the applicant is a
true patriot with tremendous love and admiration for his country, that he
serves in his community and family very well, and is merely requesting that
his discharge be upgraded to an honorable discharge.

4.  Counsel provides a two page statement dated 29 December 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 16 July 1981, the date of his discharge from active duty.  The
application submitted in this case is dated 29 December 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 Regular Army on 1 May 1979 for a period
of three years.  After his completion of basic and advanced individual
training, he was awarded the military occupational specialty 45N (Tank
Turret Mechanic) and assigned to Company C of the 3rd Battalion of the 77th
Armor.

4.  On 29 October 1979, nonjudicial punishment was imposed against the
applicant for failing to go his appointed place of duty at the time
prescribed.  His punishment consisted of 14 days extra duty and forfeiture
of $100.00 per month for one month (suspended for a period of 30 days).

5.  The applicant's medical records during the period of May 1979 through
July 1980, show that he received medical treatment for blackouts, the flu,
and leg pain.

6.  On 13 August 1980, the applicant was convicted by a special court-
martial for wrongfully transferring marijuana on 23 January 1980.  He was
sentenced to reduction to the pay grade of private/pay grade E-1,
forfeiture of $200.00 per month for a period of five months, confinement at
hard labor for a period of two
months, and to be discharged from the service with a bad conduct discharge.
 His sentence was approved on 25 September 1980 and the applicant was
confined at the United States Disciplinary Barracks, Fort Leavenworth,
Kansas.

7.  On 16 October 1980, the applicant submitted a USDB FL 286 (Request for
Excess Leave), where he requested to be granted indefinite excess leave
while awaiting judicial decision as to whether he would receive a punitive
discharge.  This form shows that the applicant understood that requesting
excess leave would not be a factor on his behalf if he later requests
clemency on his approved punitive discharge; that no pay and allowances
would be accrued while in this status; that he may encounter problems in
gaining civilian employment because of his excess leave status; that he
would lack a separation document [DD Form 214]; and that he would not be
eligible for unemployment or welfare benefits.

8.  This form also show that the applicant understood if his punitive
discharge is ordered into execution, he was required to take a separation
physical as soon as possible.  The request for excess leave was approved by
a captain serving in the position as the Prisoner Personnel Officer at the
United States Disciplinary Barracks.

9.  Item 17 (Civilian Education and Military Schools) of the applicant's DA

Form 2-1 (Personnel Qualification Record – Part II), shows that the
applicant received his General Equivalency Diploma (GED) in 1975.  This
form also shows he was in confinement for the period 28 August 1980 through
16 October 1980.
10.  The applicant was discharged from the Regular Army, effective 16 July
1981 under the provisions of paragraph 11-2 of Army Regulation 635-200 and
furnished a Bad Conduct Discharge Certificate.  He completed 2 years and
27 days of active duty with 50 days of lost time due to AWOL and
confinement and 273 days of excess leave.

11.  The applicant submitted a statement of support from his wife, dated
7 April 2003, wherein she requested correction of her husband's discharge
to an honorable discharge.  She continued that the applicant's former wife
encouraged him to join the Army so they could have a better life for their
family, a better career and that she would follow him with their children.


12.  The applicant's wife further stated that shortly after he enlisted,
his former wife wrote him a "Dear John letter" informing him that she
wanted a divorce, that she was living with his sister's husband and that
she was pregnant by that individual.  The applicant's wife continued that
her husband was in shock when he received the news and soon afterwards
started to have severe anxiety and nervous attacks.  The applicant's wife
stated that her husband rapidly lost control of his life and his chances of
making the military a career were disintegrating as each day passed.

13.  The applicant's wife contends that even though her husband was
24 years old at the time of his enlistment, he was viewed as a man of
experience and maturity.  The wife further states that the reality was that
he did not graduate from high school [10th grade] because he had to help
his family when his father became disabled and that her husband was not
exposed to the outside world while growing up in a rural town of West
Virginia.

14.  The applicant's wife opined that the U.S. Army accepted a "raw,
uneducated and proud young man of 24 years of age" and that the applicant
was told by his recruiters that the military would change his life for the
better by having a great career.  She continued that her husband elected to
make a major change and enlisted in the Army without having full knowledge
of the unfortunate events that drastically changed his life.  She further
stated that they were fortunate that the drastic change did not physically
kill him although he died an emotional death.

15.  The applicant's wife opined that if the military would have provided
the professional medical counseling and treatment for a "troublesome
individual", her husband's life would have been what he had envisioned when
he enlisted.  The applicant's requests that may all the facts and
circumstances be reviewed and grant her husband's request to upgrade his
discharge.

16.  The applicant submitted a statement from his pastor at the Colony
Baptist Church, wherein he stated that he has known the applicant for nine
years.  The pastor continued that the applicant was very involved in the
church (i.e., teaching Sunday school) until he injured his back.  The
pastor concluded that "if anyone deserves benefits to be given to him, it
would be [the applicant]."

17.  The applicant submitted several statements of support from friends and

co-workers.  Overall they all mentioned that the applicant is a good,
honest, fair, and caring individual, who is a faithful husband to his wife,
a devoted father to his children and reliable to his friends, church and
community.  It is mentioned that the applicant needs help since he is
unable to work due to his disability and deserves to have his discharge
upgraded.

18.  There is no evidence the applicant applied to the Army Discharge
Review Board for upgrade of his discharge.

19.  Army Regulation 635-200 (Enlisted Separations) governs the separation
of enlisted soldiers on active duty.  Paragraph 11-2 states that a member
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial, after completion of appellate review
and after such affirmed sentence has been ordered duly executed.

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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

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.  Section 1552(f), Title 10, United States Code states that the Army
Board for Correction of Military Records 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.
23.  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 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.

24.  Article 134 of the UCMJ is the general article.  Specifically, Article
134 of the UCMJ states, in effect, that all disorders and neglects to the
prejudice of good order and discipline in the armed forces, all conduct of
a nature to bring discredit upon the armed forces, and crimes and offenses
not capital of which persons subject to the UCMJ may be guilty shall be
taken cognizance of by a general, special, or summary court-martial,
according to the nature and degree of the offense, and shall be punished at
the discretion of that court.

25.  Paragraph 213b of the Manual of Courts-Martial, in pertinent part,
states that it is a violation of Article 134 for wrongfully to possess or
use marijuana or a habit forming narcotic drug.  Possession or use of
marijuana or a habit forming narcotic drug may be inferred to be wrongful
unless the contrary appears.

26.  The Table of Maximum Punishments in the Manual of Courts-Martial, in
effect at that time, prescribes as the maximum punishment for that offense,
and for any lesser included offense if the latter is not listed, and for
any offense closely related to either if not listed.  Under Article 134
(for drugs, wrongful use, possession, manufacture, or introduction of
marijuana) indicate the maximum punishment consists of confinement at hard
labor not to exceed 5 years, total forfeitures of pay and allowances, and a
dishonorable discharge.

27.  Paragraph 76a(4) of the Manual of Courts-Martial states that a bad-
conduct discharge may be imposed in any case in which a dishonorable
discharge may be imposed as well as in certain other cases.  It is a less
severe punishment than dishonorable discharge and is designed as a
punishment for bad-conduct rather than as a punishment for serious offenses
of either a civil or military nature.

28.  Paragraph 127c(4) of The Manual of Courts-Martial states that a bad-
conduct discharge may be adjudged upon conviction of any offense for which
a dishonorable discharge is authorized in the table.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his bad conduct discharge should be
upgraded to an honorable discharge.

2.  The applicant's wife contends that her husband was young, raw and
uneducated, and that the military should have provided the professional
medical counseling and treatment he needed during his period of service.

3.  Records indicate that the applicant was 24 years old at the time he was
convicted for the offense and he was almost 25 years old at the time of his
discharge.  However, there is no evidence that indicates that the applicant
was any less mature than other soldiers of the same age who successfully
completed military service.  Records also show that the applicant received
his GED in 1975, which was prior to enlisting into the Regular Army.

4.  The applicant's service records show that he was treated numerous times
by the military medical staff for his blackout episodes, however, there is
no evidence and/or indication that the applicant sought counseling or
treatment for his marital difficulties.  Based on these facts, the
contention is not sufficiently mitigating to warrant relief.

5.  The applicant contends that there were inaccuracies throughout the
separation process and the misspelling of marijuana throughout the record.


6.  The applicant did not specifically indicate where within the separation
processes were the inaccuracies.  In the absence of evidence to the
contrary, it is presumed that all requirements of law and regulation were
met and the rights of the applicant were fully protected throughout the
separation process.

7.  The applicant contends that the marijuana was misspelled throughout his
military records.  Contrary to the applicant's contentions, the Merriam-
Webster Dictionary shows that the spelling can either be "marijuana" or
"marihuana."  Based on these facts, the contention is not sufficiently
mitigating to warrant relief.

8.  Evidence shows the applicant was tried and convicted for the wrongful
transfer of marijuana by special court-martial in August 1980 and was
issued a Bad Conduct Discharge Certificate.

9.  Trial by court-martial was warranted by the gravity of the offense
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.

10.  The Manual of Courts-Martial, in effect at that time, shows that the
applicant did not receive the maximum punishment for the offense he was
convicted.

11.  The applicant’s post service conduct is noteworthy.  However, good
post service conduct alone is not a basis for upgrading a discharge and
does not mitigate his indiscipline in the Army.

12.  The applicant's record of service includes completion of only two
years of his three-year enlistment and 50 days of confinement.  As a
result, his Army service does not meet the standards of acceptable conduct
and performance of duty for Army personnel.  Therefore, he is not entitled
to an honorable discharge.

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

14.  After review of the applicant's entire record of service, it was not
considered sufficiently meritorious to warrant clemency in this case.
Given the seriousness of the offense for which he was convicted and
confined, it is also clear that his service was not satisfactory, thus did
not meet the criterion for discharge under honorable conditions.
Therefore, his bad conduct discharge is equitable, and there is no basis
for changing his discharge as requested.

15.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 July 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 15 July 1984.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm__  __lh_____  ___ls___  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.




                                  ______Mark D. Manning____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004102015                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/11/09                              |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |1981/07/16                              |
|DISCHARGE AUTHORITY     |AR 635-200, para 11-2                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000/discharge                      |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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