RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050016253


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. 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 her bad conduct discharge (BCD)
be upgraded.

2.  The applicant states, in effect, that she is appealing her BCD as it
presents an injustice to the individual she is.  Her BCD was based on an
isolated incident during which time she was under the influence of
controlled substances.  Her  DD Form 214 (Certificate of Release or
Discharge from Active Duty), dated 28 November 1989, is presently being
used by the Greater Los Angeles Veterans Office.  She states that when she
submitted her appeal for medical reasons they categorized her discharge as
dishonorable, despite the BCD noted.

3.  The applicant provides a copy of her DD Form 214, dated 28 November
1989, a copy of several letters of support, a copy of her degrees and
transcripts, and several awards and letters, in support of her request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Disabled American Veterans, as counsel for the applicant, requests
that her BCD be upgraded.

2.  Counsel states, in effect, that based on the former service member's
contentions, which are clearly stated on her application, and an overview
of the available records, coupled with an overwhelming number of letters of
support, to include her license and degrees, that her discharge should be
upgraded.

3.  Counsel states, in effect, that the applicant will prove to the Board
that she deserves an upgrade.  In addition, it is important to consider all
of her award letters and certificates.  Although, the infractions did
constitute military misconduct, her outstanding post service strongly
supports the fact that she has redirected her life in a positive way.  She
has continuously put forth the effort to excel, regardless of her past.

4.  Therefore, counsel states, it is strongly recommended that the Board
heavily weigh all the evidence in this case and upgrade her discharge based
on equity and good conscience.

5.  Counsel provides no additional documentation in support of the
applicant's request.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 November 1989, the date of her discharge.  The application
submitted in this case is dated 10 October 2005 but was received on
11 November 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's military records show she entered active duty (AD) on
22 February 1985, as an administrative specialist (71L), in pay grade E 3,
with prior service.  She was advanced to pay grade E-4 on 1 November 1985.


4.  In accordance with her pleas, she was found guilty by a general court-
martial on 14 February 1989, of one charge and three specifications of the
wrongful distribution of cocaine on 24 June 1988, 6 July 1988, and on
17 July 1988; and one charge and specification of stealing U.S. currency of
a value of $200.00, on 11 August 1988.  She was found guilty of all charges
and specifications.  A panel of members sentenced the applicant to
confinement for 12 months, reduction to pay grade E-1, and to be discharged
with a BCD.  The sentence was approved on 19 April 1989, with exception of
so much of the sentence pertaining to the execution of the BCD.

5.  On 2 May 1989, The Judge Advocate General (TJAG) referred the
applicant's record of trial to the United States Army Court of Military
Review (ACMR) for appellate review.

6.  On 28 June 1989, the ACMR affirmed the findings and sentence.

7.  On 15 November 1989, after completion of the appellate review process,
the convening authority ordered the applicant's sentence, duly executed,
with exception of that portion of the sentence pertaining to the
applicant's confinement for 12-months.  The unexecuted portion of the
sentence to confinement was remitted.


8.  On 28 November 1989, the applicant was discharged from the Army
pursuant to the sentence of the general court-martial and was issued a BCD.
 She had completed 4 years and 6 months of creditable service and had
255 days of lost time due to confinement.

9.  The applicant's case is ineligible for  review  by  the  Army  Discharge
Review Board (ADRB) due to her conviction by a general court-martial.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-11 of that regulation
provides 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 sentence affirmed before it can
be duly executed.

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.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

13.  Title 10, United States Code, section 1552, as amended, does not
permit any redress by this Board which would disturb the finality of a
court-martial conviction.  The Board is empowered to address the
punishment and/or the characterization of service resulting from a court-
martial conviction.  The Board may elect to change the punishment and/or
the characterization of service 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.

DISCUSSION AND CONCLUSIONS:

1.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.
2.  The evidence of record shows that the applicant was convicted by a
general court-martial for wrongfully distributing cocaine on three
occasions and for stealing U.S. currency of a value of $200.00.  She was
discharged pursuant to the sentence of a general court-martial and was
issued a BCD.

3.  In her application to the Board, the applicant states her discharge was
based on an isolated incident; however, the Board noted that the
distribution of cocaine spanned nearly a month and this was followed a
month later in August by the stealing of currency, the property of another
person or organization.

4.  The Board notes that it has been over 16 years since the applicant
received her BCD.  It also noted that her infractions, while serving on AD,
constituted military misconduct.  Since her discharge, she has directed her
life in a positive way as attested to by her post service
accomplishments/achievements.  In her application to this Board, she
included several letters of support, and evidence of completion of several
degrees and licenses, and awards and letters.
However, this evidence is not sufficiently mitigating by itself to warrant
an upgrade of her discharge.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 November 1989; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 November 1992.  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

__ALR___  __QAS__  __LB____  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.




                                  _____Allen L. Raub _______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016253                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19891128                                |
|DISCHARGE AUTHORITY     |AR  635-200, chap 3                     |
|DISCHARGE REASON        |3                                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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