RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050016198


      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 Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |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.  He also requests a copy of his medical records.

2.  The applicant states, in effect, at the time of his discharge he was
told by the Criminal Investigation Command (CID) and his company commander
that his discharge would be upgraded.  He states that he was a good
Soldier, that he cooperated with CID, and that he is a law abiding citizen.
 He also states that his health is declining and he needs medical benefits
from the Department of Veterans Affairs (DVA).

3.  The applicant provides two applications.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 January 1985.  The application submitted in this case is
dated 12 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.  The applicant enlisted in the Regular Army on 7 October 1981 for a
period of 4 years.  He successfully completed basic combat training and
advanced individual training in military occupational specialty 67U (medium
helicopter repairman).

4.  On 14 June 1984, in accordance with his pleas, the applicant was
convicted by a special court-martial of attempting to distribute marijuana
in the hashish form and altering a check with intent to defraud.  He was
sentenced to be reduced to E-1, a forfeiture of $150 pay per month for 2
months, to be confined at hard labor for 45 days, and to be discharged from
the service with a bad conduct discharge.  On 6 July 1984, the convening
authority approved the sentence.

5.  On 12 September 1984, the U.S. Army Court of Military Review affirmed
the findings of guilty and the sentence.
6.  The bad conduct discharge was ordered to be executed on 7 December
1984.

7.  Accordingly, the applicant was discharged on 8 January 1985 under the
provisions of Army Regulation 635-200, chapter 3, as a result of a court-
martial.  He was issued a bad conduct discharge.  He had served 3 years, 1
month and 26 days of total active service with 34 days of lost time due to
confinement.

8.  On 16 March 1988, the Army Discharge Review Board (ADRB) notified the
applicant that his request for an upgrade of his discharge to that of a
general or honorable discharge was denied.

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.

12.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.

13.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

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

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

4.  Evidence of record shows the applicant was discharged with a bad
conduct discharge for attempting to distribute marijuana in the hashish
form and altering a check with intent to defraud.  As a result, his record
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.

5.  The applicant requested a copy of his medical records.  His medical
records were not available from the National Archives and Records
Administration and may be located with the DVA.  He should check with his
servicing DVA office for a copy of his medical records.

6.  Records show the applicant exhausted his administrative remedies in
this case when the ADRB sent notice of its decision on 16 March 1988.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 15 March 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS______  __CD___  _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 Slone________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016198                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19850108                                |
|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.                      |124.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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