RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 July 2006
      DOCKET NUMBER:  AR20050016174


      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. Paul Wright                   |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Robert J. Osborn, II          |     |Chairperson          |
|     |Mr. John M. Moeller               |     |Member               |
|     |Ms. Naomi Henderson               |     |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 be upgraded.

2.  The applicant states that his discharge is inequitable because it was
based on one isolated incident in 52 month of service with no adverse
action.  He is presently a single father working as a nurse.

3.  The applicant provides no documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 July 1988.  The application submitted in this case is
dated
29 October 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.  On 1 August 1985, the applicant enlisted in the Regular Army for a
period of
3 years.  He completed Basic Combat Training (BCT) and Advanced Individual
Training (AIT).  Upon completion of his training, he was awarded military
occupational specialty (MOS) 76V10, Materiel Storage and Handling
Specialist.

4.  On 13 March 1987, a Bar to Reenlistment was initiated based on receipt
of a letter of indebtedness, the applicant's lack of improvement in the
overweight program, and 2 incidents on a Military Police Blotter Report.
The Bar was officially approved on 16 March 1987.

5.  On 20 June 1987, the general court-martial convening authority at Fort
Bliss, Texas directed that a letter reprimand be placed in the applicant's
Military Personnel Records Jacket (MPRJ) for driving while intoxicated on
19 November 1986.

6.  On 15 June 1987, the applicant was convicted by a special court-martial
for 2 specifications of wrongful distribution of marihuana on 17 and 19
March 1987.  The sentence included a Bad Conduct Discharge, confinement for
5 months, forfeiture of $350.00 per month for 5 months, and reduction to
pay grade E-1.

7.  On 4 September 1987, the general court-martial convening authority
modified the sentence to 119 days of confinement, forfeiture of $350.00 for
4 months, and allowed the Bad Conduct Discharge and reduction to pay grade
E-1 to remain in place.

8.  On 11 December 1987, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence imposed.

9.  On 15 July 1988, the applicant was discharged with a Bad Conduct
Discharge.  He had 2 years, 7 months, and 15 days of active Federal
creditable service.  He had 275 days of excess leave and 90 days of lost
time.  It is noted that Item 25 (Separation Authority) of his DD Form 214
(Certificate of Release or Discharge from Active Duty) contains an
administrative error.  It should read Army Regulation 635-200, Chapter 3
instead of SPCMO #27 DTD 22 Jun 88.

10.  The Military Justice Act of 1983 (Public Law 98-209), provides, in
pertinent part, that military correction boards may not disturb the
finality of a conviction by court-martial.  Court-martial convictions stand
as adjudged or modified by appeal through the judicial process.  In
accordance with Title 10, United States Code, Section 1552, the authority
under which this Board acts, the Army Board for Correction of Military
Records is not empowered to change a discharge due to matters which should
have been raised in the appellate process, rather it is only empowered to
change the severity of the sentence imposed in the court-martial process 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.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within that board's 15-
year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  The character of the discharge
is commensurate with the applicant's overall record of military service.

2.  Even though the applicant may have had good service and could have been
an asset to the military, that good service was diminished by his
conviction for a serious offense by a Special Court-Martial.  Therefore,
clemency is not warranted.

3.  The applicant's contention that his discharge was the result of one
isolated incident in 52 months of service is misleading.  It is correct
that his discharge resulted from the wrongful distribution of marihuana;
however, his record was not free of other lesser acts of indiscipline.

4.  The Board notes the administrative error on the applicant's DD Form
214.  However, this error does not affect the type of discharge the
applicant received and correction of same would serve no useful purpose.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 July 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
14 July 1991.  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

__rjo___  __jmm___  __nh____  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.



                                        Robert J. Osborn, II
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016174                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060713                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19880715                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 3                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |105.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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