RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 October 2005 DOCKET NUMBER: AR20050001684 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. Wanda L. Waller Analyst The following members, a quorum, were present: Ms. Barbara Ellis Chairperson Mr. Hubert Fry Member Mr. Robert Rogers 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 clemency be granted in the form of an honorable discharge. 2. The applicant states, in effect, he served four years in the military and until he made an error in judgment, his military record was without blemish. He contends he began to suffer from depression while serving in Germany, that he met a group of military service members at the base noncommissioned officer club, and that these service members took an active interest in trying to help him adjust to being so far away from home. One of the service members asked him to do a favor by delivering a package and he [the applicant] did so without inquiring about the contents of the package. Unfortunately, the favor involved an illegal act of possessing and delivering drugs. He states he recently visited an American Legion Service Officer to request assistance after being informed by the Department of Veterans Affairs (DVA) that he was not eligible for benefits. He contends an American Legion Service Officer pointed out to him that his bad conduct discharge had been upgraded to a discharge under other than honorable conditions. 3. The applicant provides no evidence in support of his application. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 20 November 1981. The application submitted in this case is dated 29 April 2004; however, the application was received in this office on 2 February 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 enlisted on 25 January 1978 for a period of 3 years. He successfully completed basic combat training and advanced individual training in military occupational specialty 31M (mechanical communications equipment operator). He attained the rank of private first class. 4. On 14 March 1980, in accordance with his pleas, the applicant was convicted by a general court-martial of possessing heroin (two specifications), distributing heroin (two specifications), and transferring heroin (two specifications). He was sentenced to be confined at hard labor for 15 months, to be discharged from the service with a bad conduct discharge, to forfeit $200 pay per month for 15 months, and to be reduced to E-1. On 29 May 1980, the convening authority disapproved the two specifications of transferring heroin and approved the sentence. 5. On 17 July 1980, the U.S. Army Court of Military Review affirmed the findings and the sentence. The bad conduct discharge was ordered to be executed on 9 October 1980. 6. Accordingly, the applicant was discharged with a bad conduct discharge on 14 November 1980 under the provisions of Army Regulation 635-200, chapter 11, as a result of a court-martial. He had served 2 years, 1 month and 19 days of total active service with 242 days of lost time due to confinement. 7. On 29 October 1980, the Secretary of the Army directed that the applicant be restored to duty. 8. The applicant enlisted on 21 November 1980 for a period of 1 year. He served as a unit supply specialist and was honorably discharged on 20 November 1981. 9. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Chapter 11, in effect at the time, provides for dishonorable and bad conduct discharges. The regulation states, in pertinent part, that a member will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 10. Section 1552(f), Title 10, United States Code states that the Army Board for Correction of Military Records can only review records of court-martial and related administrative records to correct a record to accurately reflect action taken by reviewing authorities under the Uniform Code of Military Justice or to take clemency action. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 12. 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. DISCUSSION AND CONCLUSIONS: 1. A discharge is not upgraded for the purpose of obtaining DVA benefits. 2. There is no evidence to show the applicant's bad conduct discharge was upgraded to a discharge under other than honorable conditions. 3. The applicant’s record of service for his first enlistment included a general court-martial conviction for serious drug offenses (possessing and distributing heroin). As a result, this record of service was not satisfactory and did not meet the standards of acceptable conduct and performance for Army personnel. Therefore, clemency in the form of an honorable discharge is not warranted in this case nor was his service sufficiently satisfactory to warrant a general discharge. 4. Records show the applicant should have discovered the alleged injustice now under consideration on 20 November 1981; therefore, the time for the applicant to file a request for correction of any injustice expired on 19 November 1984. 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 BE_____ HF______ RR_____ 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. __Barbara Ellis_______ CHAIRPERSON INDEX CASE ID AR20050001684 SUFFIX RECON DATE BOARDED 20051019 TYPE OF DISCHARGE BCD DATE OF DISCHARGE 19801114 DISCHARGE AUTHORITY AR 635-200 Chapter 11 DISCHARGE REASON As a result of court-martial BOARD DECISION NC REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.