RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            09 November 2006
      DOCKET NUMBER:   R20060006091


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Mr. Ernestine Fields              |     |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 that his bad conduct discharge (BCD) be upgraded
to a general discharge.

2.  The applicant states that he was told by his commander that his BCD
would be upgraded to a general discharge within 6 months of his discharge
and he now needs his discharge upgraded to obtain medical benefits from the
Department of Veterans Affairs (VA).

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 9 August 1982.  The application submitted in this case is dated
11 April 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 was born on 8 December 1956 and enlisted in Little Rock,
Arkansas, on 9 August 1977 for a period of 4 years, training as an
infantryman, a cash enlistment bonus, and assignment to Panama.

4.  He completed his basic combat training at Fort Leonard Wood, Missouri
and his advanced individual training at Fort Benning, Georgia before being
transferred to Panama on 17 January 1978.  He was advanced to the pay grade
of E-3 on 1 March 1979.

5.  On 15 August 1979, nonjudicial punishment was imposed against him for
wrongful possession of marijuana.  His punishment consisted of a reduction
to the pay grade of E-2 (suspended for 60 days), a forfeiture of pay, extra
duty, and restriction.

6.  On 20 February 1980, the applicant was convicted by a special court-
martial of wrongfully attempting to possess 30 plates of a narcotic drug
(cocaine), of wrongfully attempting to sell a narcotic drug (cocaine), and
of wrongfully attempting to transfer a narcotic drug (cocaine).  He was
sentenced to confinement for 3 months, a forfeiture of $299.00 pay per
month for 3 months, and a BCD.

7.  On 10 April 1981, the United States Army Court of Military Review
(USACMR) affirmed specification one of the charge (attempting to possess)
and the sentence.  The USACMR set aside specification two and three
(attempting to sell and transfer).

8.  On 19 July 1982, orders were published at Fort Leavenworth, Kansas,
which directed that the applicant’s BCD be executed.  Accordingly, the
applicant was discharged pursuant to a duly reviewed and affirmed court-
martial conviction on 9 August 1982.  He had served 4 years, 9 months, and
19 days of active service during his current enlistment and had 72 days of
lost time due to confinement and 830 days of excess leave.

9.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that Board’s 15-year statute of limitations.

10.  Title 10, United States Code, section 1552, the authority under which
this Board acts, provides, in pertinent part, that the Board is not
empowered to set aside a conviction.  Rather it is only empowered to change
the severity of the sentence imposed in the court-martial process and then
only 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.  Additionally, there have never been any provisions for an
automatic upgrade of such discharges.

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 regulations, and the discharge appropriately
characterizes the misconduct for which the applicant was convicted.

2.  The type of discharge directed and the reasons therefore appear to be
appropriate considering the available facts of the case.

3.  The applicant’s contentions regarding his discharge have been noted.
However, they are not sufficiently mitigating to warrant relief when
compared to the seriousness of his offenses and his overall record of
service.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 8 August 1985.  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

___MP       ____RR     ___EF __  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.



                                  ___ Margaret Patterson_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006091                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061109                                |
|TYPE OF DISCHARGE       |(BCD)                                   |
|DATE OF DISCHARGE       |1982/08/09                              |
|DISCHARGE AUTHORITY     |BCD/SPCM . . . . .                      |
|DISCHARGE REASON        |SPCM                                    |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |675/A68.00                              |
|1.144.6800              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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