RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        25 October 2005
      DOCKET NUMBER:  AR20050000328


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |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 dishonorable discharge (DD) be
upgraded.

2.  The applicant states that the court-martial punishment was too harsh
and he needs an upgrade to receive full Department of Veterans Affairs (VA)
benefits.

3.  The applicant provides copies of a letter from the president of his
court-martial board and three of four pages of an appeal letter from his
trial defense counsel.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 11 May 1990, the date of his discharge.  The application
submitted in this case is dated 12 December 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 records show the applicant, a staff sergeant (SSG) medical
specialist, first served on active duty from 11 October 1973 through 1 June
1977.  He reenlisted on 17 May 1979 and had continuous service until
discharged on 11 May 1990.

4.  Prior to the charges that resulted in the applicant's court-martial the
record contains no disciplinary or derogatory information.

5.  In early 1985 sergeant first class (SFC) J____ came to the attention of
District of Columbia Police and the Criminal Investigative Division (CID).
During their investigation SFC J____ voluntarily came forward and offered
to identify other drug dealers in exchange for favorable treatment in his
case.

6.  In December 1985 SFC J____ identified three people, including the
applicant, as drug dealers.  CID set up surveillance on the applicant and
initiated controlled drug buys through SFC J____ from the applicant.

7.  In connection with the investigation, a warrant was obtained to search
the applicant's house.  This search produced a packet of cocaine, several
drug paraphernalia items including a scale, and funds that had been used in
the CID controlled buys.

8.  The applicant was charged with three specifications of wrongful
distribution of cocaine, one specification of wrongful possession of
cocaine with intent to distribute, and one specification of possession of
drug paraphernalia.  The charge of possession of drug paraphernalia was
dismissed prior to the convening of the court-martial.

9.  The applicant appeared with counsel at a hearing convened under the
provisions of Article 32, Uniform Code of Military Justice.  The
investigating officer found sufficient evidence to recommend that the
applicant's case be referred to a general court-martial.

10.  The applicant appeared with counsel before a general court-martial
convened on 16 September 1986.  Testimony and arguments where given on
16 September, 10 October, 10 November and 12 November 1986.

11.  During the testimony the applicant and his attorney argued that the
applicant was set-up by SFC J____ and CID.  They argued that the drugs and
money involved in the case were the property of SFC J____ who had asked the
applicant to hold them for him and that the applicant did not profit from
these actions.  The make-up of the court-martial panel was challenged in
that there was no black member on the panel.  The applicant is black.

12.  The applicant was found guilty of three specifications of wrongful
distribution of cocaine and one specification of wrongful possession of
cocaine with intent to distribute.  He was sentenced to reduction to pay
grade E-1, forfeiture of $400.00 pay per month for 2 years, confinement for
2 years, and a dishonorable discharge.

13.  The Staff Judge Advocate (SJA) reviewed the case, including a letter
requesting clemency from the president of the court-martial panel, Colonel
H____.  The SJA indicated that the arguments for clemency and sentence
reduction had been presented to the court-martial panel and the court
members had ample opportunity to consider them in determining sentencing.
The SJA recommended that the convening officer approve the findings and
sentence as adjudged.


14.  The general court-martial convening authority approved the sentence as
adjudged and ordered that, except for the dishonorable discharge, the
sentence be executed.  The case was forwarded to the Army Court of Military
Review for review in accordance with regulations.

15.  The Army Court of Military Review rejected the applicant's contentions
that the panel was improperly constituted because it did not contain a
black member and that CID and SFC J____ had entrapped the applicant.  It
determined that the judge had not erred in not allowing testimony relating
to the character and reputation of SFC J____ or in failing to instruct the
members regarding the lesser included offense of possession of cocaine.  It
also determined that the factors outlined in the letter from Colonel H____,
the president of the court-martial panel, requesting clemency did not
indicate that the court-martial panel was over zealous in its sentencing.

16.  The Army Court of Military Review determined that the guilty findings
and sentence, as approved by proper authority, were correct in law and fact
and affirmed the findings and the sentence on 29 April 1988.

17.  On 7 June 1988, the Army Court of Military Review rejected a request
to reconsider the case.

18.  The United States Court of Military Appeals affirmed the decisions of
the Army Court of Military Review on 8 September 1989 without amendment or
remand.

19.  On 24 April 1990, the United States Disciplinary Barracks announced
that the sentence had been finally affirmed and Article 71(c) UCMJ, having
been complied with, issued General Court-Martial Order Number 85 ordering
that the dishonorable discharge would be duly executed.

20.  The applicant was discharged effective 11 May 1990 with a dishonorable
discharge pursuant to his sentence by court-martial.  He had 12 years, 9
months, and 26 days of creditable active service with 637 days of lost time
due to confinement and 640 days in excess leave status.

21.  Title 10, U. S. Code, section 1552(f) states that, with respect to
records of courts-martial tried or reviewed under the Uniform Code of
Military Justice, the Board's action may extend only to action on the
sentence of a court-martial for purposes of clemency.


DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
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.

2.  The applicant's contentions relate to evidentiary and procedural
matters which were finally and conclusively adjudicated in the court-
martial appellate process, and furnish no basis for recharacterization of
the discharge.

3.  Entitlement to VA benefits is not within the purview of this Board nor
is it normally considered a basis for granting relief.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 11 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 10 May 1993.  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

_JEA ___  __JAM__  ___LMD__  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.





                                  _      James E. Anderholm_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050000328                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051025                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.9437 GCM DD                         |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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