RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          19 October 2005
      DOCKET NUMBER:  AR20050001684


      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:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Hubert Fry                    |     |Member               |
|     |Mr. Robert Rogers                 |     |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, that clemency be granted in the form
of an honorable discharge.

2.  The applicant states, in effect, he served four years in the military
and until he made an error in judgment, his military record was without
blemish.  He contends he began to suffer from depression while serving in
Germany, that he met a group of military service members at the base
noncommissioned officer club, and that these service members took an active
interest in trying to help him adjust to being so far away from home.  One
of the service members asked him to do a favor by delivering a package and
he [the applicant] did so without inquiring about the contents of the
package.  Unfortunately, the favor involved an illegal act of possessing
and delivering drugs.  He states he recently visited an American Legion
Service Officer to request assistance after being informed by the
Department of Veterans Affairs (DVA) that he was not eligible for benefits.
 He contends an American Legion Service Officer pointed out to him that his
bad conduct discharge had been upgraded to a discharge under other than
honorable conditions.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 20 November 1981.  The application submitted in this case is
dated 29 April 2004; however, the application was received in this office
on 2 February 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 enlisted on 25 January 1978 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 31M (mechanical communications
equipment operator).  He attained the rank of private first class.

4.  On 14 March 1980, in accordance with his pleas, the applicant was
convicted by a general court-martial of possessing heroin (two
specifications), distributing heroin (two specifications), and transferring
heroin (two specifications).  He was sentenced to be confined at hard labor
for 15 months, to be discharged from the service with a bad conduct
discharge, to forfeit $200 pay per month for 15 months, and to be reduced
to E-1.  On 29 May 1980, the convening authority disapproved the two
specifications of transferring heroin and approved the sentence.

5.  On 17 July 1980, the U.S. Army Court of Military Review affirmed the
findings and the sentence.  The bad conduct discharge was ordered to be
executed on
9 October 1980.

6.  Accordingly, the applicant was discharged with a bad conduct discharge
on 14 November 1980 under the provisions of Army Regulation 635-200,
chapter 11, as a result of a court-martial.  He had served 2 years, 1 month
and 19 days of total active service with 242 days of lost time due to
confinement.

7.  On 29 October 1980, the Secretary of the Army directed that the
applicant be restored to duty.

8.  The applicant enlisted on 21 November 1980 for a period of 1 year.  He
served as a unit supply specialist and was honorably discharged on
20 November 1981.

9.  Army Regulation 635-200 provides the basic authority for the separation
of enlisted personnel.  Chapter 11, in effect at the time, provides for
dishonorable and bad conduct discharges.  The regulation states, in
pertinent part, that a member will be given a dishonorable discharge
pursuant only to an approved sentence of a general court-martial, after
completion of appellate review and after such affirmed sentence has been
ordered duly executed.

10.  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 or to take clemency action.

11.  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.

12.  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.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

2.  There is no evidence to show the applicant's bad conduct discharge was
upgraded to a discharge under other than honorable conditions.

3.  The applicant’s record of service for his first enlistment included a
general court-martial conviction for serious drug offenses (possessing and
distributing heroin).  As a result, this record of service was not
satisfactory and did not meet the standards of acceptable conduct and
performance for Army personnel.
Therefore, clemency in the form of an honorable discharge is not warranted
in this case nor was his service sufficiently satisfactory to warrant a
general discharge.

4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 20 November 1981; therefore, the time for the
applicant to file a request for correction of any injustice expired on 19
November 1984.  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

BE_____  HF______  RR_____  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.




            __Barbara Ellis_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001684                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051019                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19801114                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 11                   |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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