RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050016535


      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. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. Taylor             |     |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 his bad conduct discharge (BCD)
be upgraded to honorable.

2.  The applicant states, in effect, that this was his first mistake and he
had no other problems.  He had completed his job in a military manner, was
a good Soldier, loved the Army, and this was his second enlistment.  He
also states that he was young and should have received a small punishment.
He further states that he desired to reenlist for a third term, the Army
was his family.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 June 1983, the date of his discharge.  The application
submitted in this case is dated 1 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.  Prior to the period of service under review, the applicant served
honorably in the Regular Army (RA) from 2 April 1976 to 31 October 1978
until he was separated for immediate reenlistment.

4.  On 1 November 1978, at age 22, the applicant reenlisted in the RA in
the rank of sergeant/pay grade E-5 and for military occupational specialty
(MOS)
12F (Engineer Tracked Vehicle Crewman).

5.  At a special court-martial on 4 November 1982, the applicant entered a
plea of not guilty to a Charge and specification 1 and 2; of wrongful
possession of marijuana and of wrongful transfer of marijuana, both in the
hashish form; and guilty to specification 3; wrongfully selling marijuana,
in the hashish form.  He was found not guilty of specification 1 and 2 and
guilty of specification 3.  He was sentenced to confinement at hard labor
for 15 days, to be reduced to the pay grade of E-1, and to be discharged
with a BCD.  No previous convictions were considered.  The sentence was
adjudged on 4 November 1982 and approved on 9 December 1982.  The record of
trial was then forwarded to The Judge Advocate General (TJAG) of the Army
for review by a Court of Military Review (CMR).

6.  On 23 May 1983, after completion of the appellate review process, the
convening authority ordered the applicant's sentence, including the bad
conduct discharge executed.  The portion of his sentence pertaining to
confinement had been served.

7.  On 3 June 1983, the applicant was discharged from the Army pursuant to
the sentence of the special court-martial and was issued a BCD.  He had
completed 7 years, 1 month, and 22 days of creditable service and he had
15 days of lost time due to confinement.

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

9.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 11-1(b) of
the regulation provided, in pertinent part, that an enlisted person would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial, after completion of appellate review and,
after affirmation of the sentence imposed.

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.

11.  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.

12.  The Manual for Courts-Martial provides the maximum sentences that may
be imposed if convicted at trial by court-martial.  It provides, in
pertinent part, that the maximum sentence that may be imposed for a
conviction by a special court-martial, for a single violation of Article
134, drugs, wrongful distribution of, or with intent to distribute,
wrongful possession, manufacture, or the introduction of marijuana use, is
a bad conduct discharge, 6 months confinement, reduction to pay grade E-1,
and forfeiture of 2/3 pay for 6 months.

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
special court-martial for wrongfully selling marijuana.  He was discharged
pursuant to sentence of a special court-martial and was issued a BCD.

3.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

4.  The applicant contends that he was young and this was his first mistake
and that he had no other problems.  He was 26 years, 4 months, and 13 days
old on the date he committed this first mistake and he was serving in the
pay grade of E-5 as a SGT.  The applicant's youth is not an excuse in this
case.  There is no evidence that the applicant was any less mature than
other Soldiers of the same or of a younger age who served successfully and
completed their terms of service.

5.  The applicant's mistake was apparently a major one involving the
wrongful sale of marijuana, in the hashish form.

6.  The applicant contends that he should have received a lesser
punishment; however, according to the MCM, the maximum sentence, he could
have received a bad conduct discharge, 6 months confinement, reduction to
pay grade E-1, and a forfeiture of 2/3 pay for 6 months.  A military judge
imposed the sentence.  The convening authority makes a determination as to
what portion of the sentence adjudged by the court should be approved.



7.  The applicant's additional contentions were considered; however, they
are not sufficient to support an upgrade of his BCD.

8.  There is no evidence to show that he applied to the ADRB for an upgrade
of his BCD within its 15-year statute of limitations.

9.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 June 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 June 1986.  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

__CLG___  ___JBG_  __PMT__  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.




                                  ____Curtis L. Greenway ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016535                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19830603                                |
|DISCHARGE AUTHORITY     |AR 635-200, CHAP 11                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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