RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          20 October 2005
      DOCKET NUMBER:  AR20050003280


      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:

|     |Mr. John Meixell                  |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 a general discharge.

2.  The applicant states her bad conduct discharge is unjust because she
was solicited by someone, who had been previously arrested, to provide him
with marijuana that was not hers.  She contends the marijuana belonged to a
friend who was not home and the individual kept hounding her so she gave
in.  She points out that she was a good Soldier, that she was very young
and vulnerable, that she made a mistake by listening to the wrong person,
that she was tricked, and that she has learned since then.  She also states
that she wants to become an American citizen, that she has lived and worked
in the country for 23 years, that she has been a model citizen, and that
she has a husband and a daughter.
3.  The applicant provides no evidence in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 November 1986.  The application submitted in this case is
dated
16 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 was born on 4 June 1962.  She enlisted in the Army on 19
May 1983 for a period of 4 years.  She successfully completed basic
training and advanced individual training in military occupational
specialty 36C (wire systems installer operator).

4.  On 25 October 1984, nonjudicial punishment was imposed against the
applicant for using marijuana.  Her punishment consisted of a reduction to
E-2 (suspended), a forfeiture of pay, and extra duty.

5.   On 10 October 1985, a bar to reenlistment was imposed against the
applicant.

6.  On 17 December 1985, in accordance with her plea, the applicant was
convicted by a general court-martial of distributing one ounce, more of
less, of marijuana on 5 August 1985.  She was sentenced to be reduced to E-
1, to forfeit all pay and allowances, to be confined for 9 months, and to
be discharged from the service with a bad conduct discharge.  On 11
February 1986, the convening authority approved the sentence.

7.  On 7 April 1986, the U.S. Army Court of Military Review affirmed the
findings of guilty.  The bad conduct discharge was ordered to be executed
on
17 November 1986.

8.  Accordingly, the applicant was discharged on 24 November 1986 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  She was issued a bad conduct discharge.  She had served 2 years,
10 months and 26 days of total active service with 220 days of lost time
due to confinement.

9.  Army Regulation 635-200 sets forth the basic authority for separation
of enlisted personnel.  Chapter 3 of this regulation states that a Soldier
will be given a bad conduct discharge pursuant only to an approved sentence
of a general or special court-martial.  The appellate review must be
completed and the affirmed sentence 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 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.  The applicant’s contentions that her bad conduct discharge is unjust
because she was solicited by someone who had been previously arrested and
that she had been tricked relates to evidentiary and procedural matters
that should have been addressed and conclusively adjudicated in the court-
martial appellate process and furnishes no basis for recharacterization of
the discharge.

2.  Age is not a sufficiently mitigating factor.  The applicant was almost
21 years old when she enlisted, she successfully completed basic combat
training and advanced individual training, and she was 23 years old when
she committed the general court-martial offense.

3.  A discharge is not upgraded for the sole purpose of obtaining
citizenship.

4.  Good post service conduct alone is not a basis for upgrading a
discharge.

5.  Evidence of record shows the applicant was discharged with a bad
conduct discharge for distributing marijuana.  Evidence of record also
shows the applicant previously accepted nonjudicial punishment for using
marijuana.  As a result, her record of service was not satisfactory.
Therefore, clemency in the form of a general discharge is not warranted in
this case.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 24 November 1986; therefore, the time for the
applicant to file a request for correction of any injustice expired on 23
November 1989.  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

JM_____  JG______  JM______  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.




            __John Meixell________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050003280                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051020                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19861124                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 3                    |
|DISCHARGE REASON        |As a result of court-martial            |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]