RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20050000982


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 (BCD) be
upgraded to a general discharge (GD) under honorable conditions or to an
honorable discharge.

2.  The applicant states that he has paid his debt and feels that his first
period of service should be used for Veterans Administration (VA) benefits.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 April 1975, the date of his discharge.  The application
submitted in this case is dated 28 December 2004, but was not received for
processing until 20 January 2005.

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 he entered active duty (AD) on
26 August 1971, as a recovery specialist.  He was promoted to pay grade E-4
effective 26 May 1973.  He was discharged from AD on 31 October 1973 in
order to reenlist.  He reenlisted on 1 November 1973.

4.  In accordance with his pleas, he was found guilty by a general court-
martial on 18 September 1974, of wrongfully possessing, with intent to
distribute, diacetyl morphine, commonly known as heroin, a controlled
substance, on two occasions.  His sentence consisted of a reduction to pay
grade E-1, forfeiture of all pay and allowances, confinement at hard labor
for 2 years, and a dishonorable discharge (DD).  On 1 November 1974, the
convening authority approved only so much of the sentence as provided for
reduction to E-1, forfeiture of all pay and allowances, confinement at hard
labor for 1 year, and a DD.



5.  The applicant's record of trial was forwarded to The Judge Advocate
General (TJAG) of the Army for review by a Court of Military Review.  The
applicant was
confined in the US Disciplinary Barracks, Fort Leavenworth, Kansas, pending
completion of the appellate review.

6.  On 28 January 1975, the United States Army Court of Military Review
(ACMR) affirmed the findings and sentence as adjudged by the convening
authority.

7.  On 10 March 1975, General Court-Martial Order Number 251 was published
by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas.
This order finally affirmed the applicant's sentence.  An action by the
Secretary of the Army remitted so much of the sentence as pertained to
confinement in excess of 10 months. The order also provided for the
mitigation of the DD to a BCD.  The provisions of Article 71(c) having been
complied with, the sentence was ordered into execution.

8.  On 14 April 1975, the applicant was discharged from the Army pursuant
to the sentence of a general court-martial and was issued a BCD.  He had a
total of 2 years, 11 months, and 15 days of creditable service and a total
of 245 days lost time.

9.  The applicant is unable to obtain medical treatment from the Department
of Veterans Affairs (VA) due to his discharge.

10.  The applicant’s case is ineligible for review by the Army Discharge
Review Board (ADRB) due to his conviction by a general court-martial.

11.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 11-2 of the
regulation provided, in pertinent part, that an enlisted person 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 affirmation of the sentence imposed.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-10 of that regulation
provides that a Soldier will be given a dishonorable discharge pursuant
only to an approved sentence of a general court-martial, after completion
of appellate review and after affirmation of the sentence imposed.



13.  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.

14.  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.

15.  Title 10, United States Code, section 1552, as amended, does not
permit any redress by this Board which would disturb the finality of a
court-martial conviction.  The Board is empowered to address the punishment
and/or the characterization of service resulting from a court-martial
conviction.  The Board may elect to change the punishment and/or the
characterization of service 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 shows that the applicant was found guilty by a
general court-martial of wrongfully possessing, with intent to distribute,
diacetyl morphine, commonly known as heroin, a controlled substance.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.

3.  The sentence of the general court-martial included the applicant's
discharge with a DD.

4.  The evidence shows that the applicant's sentence was affirmed and
ordered executed.  Court-martial orders were later published affirming only
10 months of the sentence at hard labor.  The sentence was ordered executed
and the DD was mitigated to a BCD after the sentence was ordered into
execution.


5.  The evidence of record clearly shows the applicant's first period of
service was honorable and that he may be entitled to some VA benefits;
however, he must contact his nearest VA representative for further
assistance regarding any VA benefits to which he may be entitled.

6.  Records show the applicant should have discovered the alleged error
or injustice now under consideration on 14 April 1975; therefore, the
time for the Applicant to file a request for correction of any error or
injustice expired on 13 April 1978.  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

__TSK_  ____PM____  __CAK _  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.




                                  _     Ted S. Kanamine_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000982                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051013                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19750414                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 11                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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