RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        5 October 2006
      DOCKET NUMBER:  AR20060002213


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Scott W. Faught               |     |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 Bad Conduct
Discharge (BCD).

2.  The applicant states, in effect, that he believes that his discharge is
inequitable because he completed his entire enlistment tour.

3.  The applicant provides no additional supporting documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 September 1984, the date he was released from active
duty.  The application submitted in this case was received on 10 February
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.  On 14 January 1981, the applicant enlisted in the Regular Army for a
period of
3 years.  He was trained in, awarded and served in military occupational
specialty (MOS) 13B10 (Cannon Crewman).  The highest grade he attained was
pay grade E-4.

4.  On 21 March 1983, the applicant accepted nonjudicial punishment for the
wrongful possession of Marijuana.  His imposed punishment was a reduction
to pay grade E-2, a forfeiture of $150.00 pay, 14 days extra duty and 7
days restriction.

5.  On 6 February 1984, the applicant was convicted at a General Court-
Marital convened by Headquarters, 7th Infantry Division and Fort Ord, Fort
Ord, California, of one specification of the wrongful distribution of some
amount of Marijuana and one specification of the wrongful possession with
the intent to distribute, 20 grams more or less of Marijuana.  He was
sentenced to a Bad Conduct Discharge; to forfeit all pay and allowances for
21 months; confinement at hard labor for a period of 21 months; and a
reduction to pay grade E-1.
6.  On 3 April 1984, the convening authority approved only so much of the
as provided by a bad conduct discharge, reduction to the grade of E-1,
forfeiture of all pay and allowances for 7 months, and confinement for 7
months. The record of trial was forwarded to The Judge Advocate General of
the Army for review by the Court of Military Review.

7.  On 12 June 1984, the United States Army Court of Military Review
affirmed the sentence and the findings of guilty and ordered it duly
executed.  On 9 July 1984, the applicant was advised as to his rights to
petition for a grant of review.

8.  On 13 July 1984, a Periodic Medical Examination found the applicant fit
for retention or separation.

9.  On 20 July 1984, a Report of Mental Status Evaluation found the
applicant was mentally responsible at the time of the offenses and
possessed the mental capacity to understand and participate in the court-
martial proceedings.

10.  On 1 August 1984, the applicant with his acknowledgement and consent
was placed on involuntary excess leave without pay and allowances.

11.  On 25 September 1984, the applicant was discharged under the
provisions Army regulation 635-200, chapter 3, as a result of a court-
martial with a BCD.  He had completed 3 years, 2 months and 16 days of
creditable active military service.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 3, in effect at the time,
provided the policies and procedures for separating members with a
dishonorable or bad conduct discharge.  It stipulated that a Soldier would
be given a bad conduct discharge pursuant only to an approved sentence of a
general or special court-martial and that the appellate review must be
completed and the affirmed sentence ordered duly executed.

13.  Title 10 of the United States Code, section 1552 as amended does not
permit any redress by this Board of the finality of a court-martial
conviction and empowers the Board to only change a discharge if clemency is
determined to be appropriate.





DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered; however, there
is insufficient evidence to support granting the requested relief.

2.  After a thorough and comprehensive review of the applicant’s military
service record, it is concluded that based on the seriousness of the
offenses for which he was convicted, clemency would not be appropriate in
this case.

3.  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.

4.  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.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 September 1984.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
24 September 1987.  However, 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

__JBG___  __MJF__  __SWF__  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.




                                       __James B. Gunlicks____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/10/05                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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