RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         12 October 2006
      DOCKET NUMBER:  AR20060002149


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. Gerald J. Purcell             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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, an upgrade of his dishonorable
discharge (DD).

2.  The applicant states, in effect, his discharge was too harsh.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 23 May 1986, the date of his discharge.  The application
submitted in this case is dated 28 January 2006.

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 record shows that after completing 3 years, 5 months,
and
29 days of prior active military service, he reenlisted and began the
period of enlistment under review on 22 March 1979.  He was awarded
military occupational specialty (MOS) 71L (Administrative Specialist) on 26
June 1979, and the highest rank he attained while serving on active duty
was specialist five (SP5).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows
that during his active duty tenure, he earned the Army Service Ribbon,
Overseas Service Ribbon, Army Good Conduct Medal (2), Noncommissioned
Officer Professional Development Ribbon, and Expert marksmanship
Qualification Badge with Rifle Bar.

5.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  A Record of Court-
Martial Conviction
(DA Form 2-2) on file confirms that on 13 August 1980, a General Court-
Martial (GCM) convicted the applicant of wrongfully possessing marijuana;
wrongfully transferring marijuana; wrongfully selling marijuana; and
attempting to sell marijuana.  His sentence for these offenses was a
reduction to private (PV1)/E-1 and six months confinement at hard labor.

6.  On 29 June 1985, a GCM found the applicant guilty of two specifications
of violating Article 112a of the Uniform Code of Military Justice (UCMJ) by
wrongfully distributing .51 grams of cocaine on 2 May 1985, and by
wrongfully distributing 2.72 grams of cocaine on 3 May 1985.  The resulting
sentence was a reduction to PV1, forfeiture of $300.00 per month for five
years, confinement for five years, and a DD.  The court-martial convening
authority approved the sentence as adjudged in Headquarters, 172nd Infantry
Brigade (Alaska),
Fort Richardson, Alaska, GCM Order Number 15, dated 21 August 1985.

7.  On 17 October 1985, the United States Army Court of Military Review
affirmed the findings of guilty and the sentence pertaining to the
applicant after having determined that they were correct in law and fact.

8.  On 8 April 1986, GCM Order Number 105, issued by Headquarters, United
States Disciplinary Barracks, United States Army Combined Arms Center and
Fort Leavenworth, Fort Leavenworth, Kansas, directed, Article 71c of the
UCMJ having been complied with, that the DD portion of the sentence be duly
executed. 23 May 1986, the applicant was discharged accordingly.

9.  The DD Form 214 issued to the applicant on the date of his separation,
23 May 1986, shows that he was separated with a DD under the provisions of
paragraph 3-10, Army Regulation 635-200, by reason of court-martial.  It
also shows that at the time of his separation, he had completed a total of
9 years,
8 months, and 18 days of creditable active military service, and had
accrued
343 days of time lost due to confinement.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3 provides the policies for
assigning a character/description of service in connection with separation.
 Paragraph 3-10 contains guidance on DDs.  It states that a Soldier will be
given a DD pursuant only to an approved sentence of a GCM.  The appellate
review must be completed and the affirmed sentence ordered duly executed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge was too harsh was
carefully considered.  However, his record confirms that the GCM conviction
that resulted in his receiving a DD was his second court-martial conviction
for serious drug related offenses.  As a result, the DD he ultimately
received was appropriate, given his repeated drug related misconduct.

2.  The evidence of record confirms the applicant’s trial by court-martial
was warranted by the gravity of the offenses for which he was charged.
Conviction and discharge were effected in accordance with applicable law
and regulations and his rights were protected throughout the court-martial
process.

3.  By law, any redress by this Board of the finality of a court-martial
conviction
is prohibited.  The Board is only empowered to change a discharge if
clemency is determined to be appropriate to moderate the severity of the
sentence imposed.  After a thorough and comprehensive review of the
applicant’s military service record, it is concluded that based on his drug
related disciplinary history and the seriousness of the offenses for which
he was convicted, clemency would be inappropriate in this case.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 May 1986, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 22 May 1989.  He failed to 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

___JI    __  __GJP __  __KSJ __  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 Infante________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002149                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/10/12                              |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |1986/05/23                              |
|DISCHARGE AUTHORITY     |AR 635-200  C3                          |
|DISCHARGE REASON        |CM                                      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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