RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 January 2006
      DOCKET NUMBER:  AR20050006921


      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. Kenneth Wright                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Qawiy Sabree                  |     |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 his bad conduct discharge was inequitable because
it was based on one isolated incident in three years and one month of
service with no other adverse actions.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); five letters of appreciation for
contributions to community organizations; a membership letter, dated 29 May
2002, from the U.S. Chamber of Commerce; a letter, dated 12 March 1999,
from the Foothills Technical Institute requesting participation in an
internship program; a letter, dated 2 June 2003, from the Arkansas
Municipal Police Association thanking the applicant for his pledge; a
letter, dated 5 April 2001, from the Arkansas State Lodge Fraternal Order
of Police thanking the applicant for his pledge; and a Certificate of
Eligibility.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 18 July 1984.  The application submitted in this case is dated
4 May 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 1 April 1981. He successfully completed One
Station Unit Training in military occupational specialty 11B (infantryman).

4.  On 24 March 1983, the applicant was convicted by a special court-
martial of wrongful possession with intent to distribute marijuana,
wrongfully distributing marijuana, and wrongfully soliciting another
Soldier to commit perjury.  He was sentenced to be reduced to E-1, to
forfeit $300 pay per month for 4 months, to be confined for 4 months, and
to be discharged from the service with a bad conduct discharge.  On 7 June
1983, the convening authority approved only so much of the sentence as
provided for a bad conduct discharge, confinement at hard labor for 3
months, forfeitures of $300 pay per month for 3 months, and reduction to
E-1.

5.  On 12 April 1984, the U.S. Army Court of Military Review set aside the
findings of guilty of specification 1 (possessing with intent to distribute
marijuana) of the charge and dismissed the specification.  The remaining
findings of guilty and the sentence were affirmed.

6.  The bad conduct discharge was ordered to be executed on 22 June 1984.

7.  Accordingly, the applicant was discharged on 18 July 1984 under the
provisions of Army Regulation 635-200 as a result of a court-martial.  He
was issued a bad conduct discharge.  He had served 3 years, 1 month and 3
days of total active service with 75 days of lost time due to confinement.

8.  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.

9.  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.

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

2.  Evidence of record shows the applicant was discharged with a bad
conduct discharge for distributing marijuana and soliciting another Soldier
to commit perjury.  As a result, his record of service was not
satisfactory.  Therefore, clemency in the form of a general discharge is
not warranted in this case.
3.  Records show the applicant should have discovered the alleged injustice
now under consideration on 18 July 1984; therefore, the time for the
applicant to file a request for correction of any injustice expired on 17
July 1987.  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

KW____  _DD_____  __QS____  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.




            ___Kenneth Wright_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006921                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19840718                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |As a result of a court-martial          |
|BOARD DECISION          |NC                                      |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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