RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            15 July 2004
      DOCKET NUMBER:   AR2004104636


      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. Michael J. Fowler             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Roger Able                    |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 his dishonorable discharge be
upgraded to a general (under honorable conditions) discharge.

2.  The applicant states that it is "an injustice for the rest of his life
to shoulder this burden of a discharge after correcting his addiction."
The applicant states essentially that through his post service efforts he
has rehabilitated himself from the addiction that caused his court-martial.
The applicant concludes that his discharge is unjust because "he continues
to be the man he is today and he is not the young man he was 18 years ago."

3.  The applicant provides an undated self-authored narrative of
explanation; four letters of support; four certificates of completion from
a drug recovery program;
and a community college enrollment history verification letter, dated
23 February 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 June 1986, the date of his dishonorable discharge.
The application submitted on this case is dated 29 February 2004.

2.  Title 10, U.S. Code Section 1552(b), provides that applications for
correction of military records must be filled within 3 years after
discovery of the alleged error
or injustice.  This provision of the law allows the Army Board for
Correction of Military Records (ABCMR) to excuse failure to file within the
3-years statute of limitation if the ABCMR determines that it would be in
the best 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 best interest of justice to
excuse the applicant’s failure to timely file.

3.  The applicant entered active duty on 11 February 1982 and successfully
completed basic training and advanced individual training.  He was awarded
the military occupational specialty 16E10 (Hawk Fire Control Crewmember)
and continuously served on active duty until being separated with a
dishonorable discharge on 19 June 1986.

4.  The applicant's record shows that the highest rank he attained while
serving on active duty was specialist four/pay grade E-4.  While on active
duty he earned the Army Service Ribbon, Marksman Badge (M-16 Rifle), and
Expert Badge (Hand Grenade.)  The applicant's records do not show other
acts of valor, significant achievement, or service warranting special
recognition.



5.  The applicant's service personnel records do not contain all of the
applicant's separation processing documentation.  However, the applicant's
records do contain the General Court-Martial Orders (GCMO) and the
Appellate Military Judges' Review of the general court-martial (GCM.)

6.  On 30 January 1985, the applicant was convicted, pursuant to his pleas
by a GCM for wrongful possession of drug abuse paraphernalia, wrongful
possession of 32.49 grams of marijuana with intent to distribute, wrongful
use of marijuana, two specifications of wrongful distribution of marijuana,
and wrongful distribution of LSD.


7.  The applicant's sentence consisted of reduction to the grade of
private, forfeiture of all pay and allowances, confinement for two years,
and a dishonorable discharge.  The sentence was adjudged on 30 January
1985.

8.  On 21 August 1985, the United States Army Court of Military Review
(USACMR) considered the applicant's GCM and determined that there was no
merit or basis to set aside the sentence and that the applicant suffered no
prejudice from the sentence.  The USACMR also determined that
specifications two and four of the additional charge finding wrongful
distribution of marijuana and LSD should be consolidated and the remaining
findings of guilty and the sentence were affirmed.

9.  On 23 December 1985, GCMO Number 772 directed that the Dishonorable
Discharge be executed.  On 13 May 1986 the applicant was approved for
parole, effective 6 June 1986

10.  On 19 June 1986, 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 2 years, 11 months, and 14 days of creditable
active military service with 505 days of lost time due to confinement.

11.  The applicant stated in his self-authored statement, that his
dishonorable discharge should be upgraded to a general discharge.  The
applicant continued that he became addicted to alcohol and got in trouble
while he was overseas.

12.  The applicant further stated that he should have been placed in a
rehabilitation facility, but instead was court-martialed and sent to prison
for possession of something he should never have had.  The applicant
concluded that he served his time for the laws he broke, then on his own,
with God's help he has turned his life around.

13.  The applicant submitted a letter of support from a City of Bessemer
Police Officer, dated 20 February 2004, which stated that she has known the
applicant for a number of years.  The author further stated that the
applicant "is truly to be applauded for his outstanding work in the
community with the Prison Out Reach Ministry, drug and rehabilitation
counseling, and the Youth and Church Ministry."

14.  The applicant submitted a letter of support from the Executive
Director of the City of Hope Rescue Mission and Recovery Center, dated 24
February 2004, who stated that he has known the applicant for four years.
The author further stated that the applicant "was very cooperative in his
drug rehabilitation program" and graduated in May of 2001 and has continued
his sobriety to this day."

15.  The applicant submitted a letter of support from an instructor at the
Lawson State Community College, dated 25 February 2004, which stated that
she became acquainted with the applicant as a student.  The author further
stated that the applicant "has always been a creative problem solver…. is
able to grasp new concepts quickly and accepts constructive criticism…."

16.  The applicant submitted a letter of support from the Pastor of the
World Overcomes Christian Church, dated 28 February 2004, which stated that
he has known the applicant for quite some years.  The author further
stated, "the manner which the applicant has conducted his life is truly
outstanding.  His work in the church, with the City of Hope drug and
rehabilitation counseling, and other ministries is making a positive
difference in our community."

17.  The applicant submitted a letter of Enrollment History Verification
from the Lawson State Community College, dated 23 February 2004, which
shows that the applicant had enrolled in two classes and is a freshman.

18.  The applicant submitted a Certificate of Completion, dated 13 July
2000, which shows that he successfully completed the overall requirements
of Phase I of the New Beginnings Recovery Program.

19.  The applicant submitted a Certificate of Completion, dated 14 December
2000, which shows that he successfully completed the overall requirements
of Phase II of the New Beginnings Recovery Program.

20.  The applicant submitted a Certificate of Completion, dated 12 April
2001, which shows that he successfully completed the overall requirements
of Phase III of the New Beginnings Recovery Program.

21.  The applicant submitted a Certificate of Completion, dated 20 May
2001, which shows that he successfully completed all requirements of the
New Beginnings Recovery Program.


22.  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 would be accomplished only after the completion of the
appellate process and affirmation of the court-martial findings and
sentence.

23.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that 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.

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.  However, given the seriousness of the offenses for 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 19 June 1986; 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 18 June 1989.
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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RA___  __JA____  _MT_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




               __Roger W. Able_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004104636                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/07/15                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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