RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          29 March 2005
      DOCKET NUMBER:  AR20040001518


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Susan A. Powers               |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to show that he was separated due
to a physical disability.

2.  The applicant states no contentions.

3.  The applicant provides in support of his request five personal
reference statements from friends and neighbors who have known the
applicant for an extended period of time.  The statements indicate the
applicant is respectful, helpful, and trustworthy.  The authors of the
statements also believe that the applicant received an injury to his arm
while serving in the military for which he should be issued a physical
disability separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
1 November 1985.  The application submitted in this case is dated 16 April
2004.

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 limitation 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 enlistment under review, the applicant served in
the Army National Guard from 2 April 1977 to 6 August 1979 in military
occupational specialty (MOS) 13B (Cannon Crewmember) until he was ordered
to active duty on 6 August 1979 for 20 months and 11 days in pay grade E-2.


4.  On 13 May 1981, the applicant was honorably separated for immediate
reenlistment.  He was not issued a DD Form 214 (Certificate or Release or
Discharge from Active Duty).

5.  On 14 May 1981, the applicant reenlisted in the Regular Army for 6
years, his previous MOS 13B, and in pay grade E-4.  On 28 July 1981, the
applicant was assigned to Germany with duties in his MOS.

6.  On 19 January 1983, the applicant lost control of his privately-owned
vehicle, and hit three road markers and a house causing damage to the
building and to his windshield.  German police conducted the investigation
and wrote the accident report.

7.  On 31 May 1983, military police cited the applicant for operating a
vehicle with expired license plates/illegal display of United States Army
Europe (USAREUR) plates and failure to obey a lawful order or general
regulation.

8.  On 2 September 1983, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against
the applicant for failure to go to his appointed place of duty at the time
prescribed on 16 August 1983.  His punishment included the forfeiture of
$198.00 pay for
1 month and reduction from pay grade E-4 to E-3 (suspended for 90 days).

9.  On 4 September 1984, while drunk, the applicant assaulted two males of
German descent, by striking them in the face with his fists, at
approximately 0120 hours, on 4 September 1984.  Military police cited him
for assault and disorderly conduct.  On 18 October 1983, the 2 September
1983 punishment was vacated.

10.  On 12 December 1984, the applicant was convicted by a special court-
martial (SPCM) for operating a vehicle while drunk in the Fuerth, Germany
housing district on 4 September 1984.  He was sentenced to reduction from
pay grade E-4 to pay grade E-2, and to receive a letter of reprimand.

11.  On 4 March 1985, the applicant underwent a mental status evaluation
and a medical examination which determined he was qualified for separation.

12.  On 1 April 1985, the applicant was notified of the commander's
intention to initiate action to discharge him under the provisions of Army
Regulation
635-200, for misconduct, before the expiration of his term of service.  The
bases cited for the recommendation in addition to the offenses above was
that on
3 February 1981, the applicant willfully damaged US Government property;
that on 13 October 1983, he missed movement to the firing range; and that
the Military Judge made special findings concluding that the applicant
deliberately lied about important matters in his 12 December 1984 SPCM.

13.  On 2 May 1985, the applicant's commander recommended that a board of
officers convene to determine whether the applicant should be discharged
because of misconduct before the expiration of his term of service.




15.  On 8 July, and on 25 July 1985, NJP was imposed against the applicant
for failure to go to his appointed place of duty at the time prescribed on
8 July and 10 July 1985.  His punishment included 14 days of extra duty and
a forfeiture of $100.00 pay for 1 month (suspended until 24 August 1985).

16.  On 6 August 1985, the applicant appeared with counsel before a board
of officers.  Thirteen days later on 20 August 1985, the board determined
the applicant was undesirable for further retention in the service because
of his pattern of misconduct consisting of conduct prejudicial to good
order and discipline.  The board recommended that the applicant be
separated from the service because of misconduct with an UOTHC discharge.

17.  On 27 September 1985, the final approval authority approved the
findings and recommendation of the board and directed that the applicant be
reduced to the lowest enlisted grade and separated for misconduct with a
UOTHC.

18.  The applicant’s DD Form 214 shows that on 1 November 1985, he was
separated under the provisions of chapter 14, Army Regulation 635-200 for
misconduct–commission of a serious offense with a UOTHC discharge.  He had
completed 6 years, 2 months and 26 days of net active service for the
period under review.  He had also completed 2 years, 4 month and 4 days of
total prior inactive service.

19.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for
separating members for misconduct.  Specific categories include minor
disciplinary infractions, a pattern of misconduct, commission of a serious
offense, to include abuse of illegal drugs, convictions by civil
authorities and desertion or absence without leave.  Action will be taken
to separate a member for misconduct when it is clearly established that
rehabilitation is impractical or unlikely to succeed.  Army policy states
that a UOTHC discharge is normally considered appropriate, but a general
discharge under honorable conditions or an honorable discharge may be
granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would have jeopardized his rights.  The type of discharge was
appropriate considering the facts of the case.



2.  The applicant was medically evaluated as part of the separation process
and there was no evidence that he had a physical problem that required
physical disability processing.  The applicant has provided no medical
evidence to the contrary.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1985; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
30 October 1988.  However, 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

__mhm___  __phm___  __sap___  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.



                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040001518                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19851101                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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