RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 June 2005
      DOCKET NUMBER:  AR20040006445


      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. Antoinette Farley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Melinda Darby                 |     |Chairperson          |
|     |Mr. Thomas O'Shaughnessy          |     |Member               |
|     |Ms. Yolanda Maldonado             |     |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 general discharge be
upgraded to an honorable discharge.

2.  The applicant states, in effect, that he believes he is innocent of the
charge for being absent without leave (AWOL).

3.  The applicant further states that he requested leave approval to attend
the General Motors Training Center at Shawnee, Kansas, in order to pass
certification tests in December 1985.

4.  The applicant points out that page 2 of his DA Form 2496 (Disposition
Form), dated 9 October 1985, shows that his requested enrollment in the
Engine Performance class from 21-23 October 1985 and Delco Moraine Disc
Bake Systems class for 24 October 1985 at the General Motors Training
Center was disapproved; however, he emphasizes that he usually received
this type of treatment from the executive officer.

5.  The applicant contends that his superior's gave him a rare 4-day leave
pass, plus a 3-day leave pass for the days he needed to attend class at the
General Motors Training Center because his leave request had been
disapproved.

6.  The applicant further contends that, after he was apprehended and while
being questioned at Fort Riley, Kansas, he provide them with the original 4-
day leave pass and 3-day leave pass.

7.  The applicant also contends that, he talked with agents from the
Criminal Investigation Division and provided them with copies of his 4-day
leave pass
and 3-day leave pass.

8.  The applicant alleges that his "important documents" were torn up by
his superiors after his sentencing.

9.  The applicant also points out that the Army Review Board Agency Support
Division refused to process his request after 15 years from the date of his
discharge.

10.  The applicant provides a detailed self-authored statement in support
of his application, dated 16 July 2004; a copy of his DD Form 214
(Certificate of Release or Discharge from Active Duty), dated 14 March
1986; a copy of a non-action letter from the Army Discharge Review Board
(ADRB); two copies of a DA Form 2496 (Disposition Form) on 9 October 1985
and one undated; three Certificates of Completion from the AC-Delco Service
Training Program for Delco Moraine Disc Brake Systems Diagnosis and Unit
Repair dated 24 October 1985, General Motors Computer Command Control
Electronic Engine and Emission Control Systems, dated 18 December 1985 and
Introduction to Engine Performance and Emission Control System Maintenance,
dated 13 December 1985; a copy of a Report of Test Results of Automobile
Certification Tests, dated 31 December 1985, a copy of a Military
Certificate of Achievement as a mechanic, dated 31 March 1984, a copy of a
Central Texas College Certificate of Completion of Training in Vocational
Counseling, dated 23  July 1985, a copy of a Military Certificate of
Training for Wheel Vehicle Mechanic Course #4-83, for the period 31 January
1983 through 4 February 1983, a copy of a Military Certificate of Training
for Operator/Organizational Maintenance Course, STE/ICE, dated 28 January
1983, a copy of a Military Certificate of Training for Wheel Vehicle
Mechanic Course, dated 29 March 1984, a copy of confirmation for enrollment
in AC-Delco Courses, dated 1985, a letter of advisement from the Guam
Election Commission, dated 12 July 2004, and a copy of DA Form 2329 (Record
of Trial by Summary Court-Martial), dated 7 January 1986.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an error which occurred on 14
March 1986, the date of his separation.  The application submitted in this
case is dated 5 August 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.  The applicant enlisted in the Regular Army on 15 June 1982.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty (MOS) 63B10 (Light Wheel Vehicle
Mechanic).

4.  The applicant's records show that he served in Korea from 27 November
1982 through 14 December 1983.  The applicant returned to the United States
from overseas and was assigned to Company B, 1st Engineer Battalion at Fort
Riley, Kansas.

5.  The applicant submitted a DA Form 2496 (Disposition Form), dated
9 October 1985, in which he requested leave approval to attend classes at
General Motors Training Center in Kansas to get up to date information in
order to pass certification test in the month of December 1986.  The
applicant's chain of command disapproved his request for leave.

6.  The applicant submitted a service school application form confirming
enrollment for courses in Engine Performance from 21-23 October 1985 and
Delco Moraine Disc Bake Systems for 24 October 1985.

7.  The applicant's record shows that on 6 November 1985, the applicant
accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of
Military Justice (UCMJ) for failing to go to his appointed place of duty.
His punishment consisted of 4 days of extra duty.

8.  The applicant submitted a second DA Form 2496, undated, in which he
requested command approval to enroll in the on-duty ASEP Course, Practical
Math for Non-Commissioned Officers.  The applicant's chain of command
disapproved this request.

9.  On 9 December 1985, the applicant was listed as being absent without
leave (AWOL).

10.  On 31 December 1985, court-martial charges were preferred against the
applicant charging him with being AWOL from 9 December 1985 to 19 December
1985.

11.  The applicant's record contains DD Form 2329 (Record of Trial by
Summary Court-Martial), dated 7 January 1986.  This document shows that the
applicant was convicted of being AWOL for the period 9 December 1985
through 19 December 1985.  The DD Form 2329 also shows that the applicant
was sentenced to forfeiture of $426.00 pay per month for one month and
confinement for 30 days.

12.  Records show that the applicant received general counseling on ten
occasions during the period 22 October 1985 through 9 December 1985 for
various offenses including but not limited to disobeying the direct orders
of a commissioned officer by attending class at the General Motors Training
Center in Kansas, by leaving the base perimeter to presumably to go class,
by leaving his weapon unsecured at this time as he had on previous
occasions, by returning to
the bivouac site at 2230 hours, by not reporting his weapon missing, and by
giving false or misleading information to his immediate chain of command in
order to attend training.

13.  On 18 February 1986, the applicant was notified by his commander that
he was being recommended for separation under the provisions of paragraph
14-12b (Patterns of Misconduct) of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations).

14.  The applicant's unit commander stated the reasons for his
recommendation were that the applicant had received a summary court martial
and numerous adverse counselings.

15.  On 24 February 1986, the applicant acknowledged in his own hand that
he was advised of the basis for his separation under the provisions of Army
Regulation 635-200.  The applicant indicated that he was counseled by
appropriate counsel and that he was not entitled to have his case heard by
an administrative separation board. The applicant also indicated that he
did not provide statements on his own behalf.

16.  On 25 February 1986, the commander of Company C, 1st Engineer
Battalion, Fort Riley, Kansas, forwarded his recommendation for the
applicant's separation and waiver of further rehabilitative efforts to the
commander of the 1st Engineer Battalion, for approval.

17.  On 27 February 1986, the commander of the 1st Engineer Battalion,
directed that the applicant be discharged from the United States Army under
the provisions of paragraph 14-12b of Army Regulation 635-200, for patterns
of misconduct.  The commander further directed that the applicant be
furnished a General Discharge Certificate.

18.  On 14 March 1986, the applicant was separated from active duty under
the provisions of paragraph 14-12b of Army Regulation 635-200, for patterns
of misconduct and furnished a General Discharge Certificate.  He completed
3 years, 7 months and 26 days of active duty with 34 days of lost time due
to AWOL and confinement.

19.  The applicant's record shows that he applied to the Army Discharge
Review Board (ADRB) for upgrade of his discharge after 14 March 2001.  This
request was denied because he filed his application outside a 15-year
statute of limitations; therefore the ADRB returned his request with no
action taken.

20.  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, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a soldier discharged under this chapter.  However, the separation
authority may direct a general discharge if such is merited by the
soldier’s overall record.  Only a general court-martial convening authority
may approve an honorable discharge or delegate approval authority for an
honorable discharge under this provision of regulation.

21.  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.  Whenever there is doubt, it is to be
resolved in favor of the individual.

22.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, that his general discharge be
upgraded to an honorable discharge because he believes he is innocent of
the charge of being absent without leave (AWOL).

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  Lacking evidence
to the contrary, it is determined that all requirements of law and
regulations were met and the rights of the applicant were fully protected
throughout the separation process.
3.  The applicant's administrative separation was in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

4.  The applicant's record of service included a nonjudical punishment and
a Summary Court-Martial for AWOL.

5.  The applicant's record of service included ten general counseling
statements for various offenses including but not limited to disregarding
direct orders not to attended training from 21 October 1985 through 25
October 1985 at the General Motors Training Center, disregarding his chain
of command's disapproval of his leave request, being AWOL, walking off and
leaving his weapon unsecured and failing to report it missing upon his
return to his quarters and by giving false or misleading information to
attend training to his immediate chain of command.

6.  The applicant's contends that, after he was apprehended and while being
questioned, he provided the original 4-day leave pass and 3-day leave pass.
 He also states that he talked with agents from the Federal Bureau of
Investigation, the Criminal Investigation Division and provided them with
copies of his 4-day leave pass and 3-day leave pass.  Notwithstanding the
applicant's contention, is unsupported by the available evidence of record.
 The applicant's military records do not mention and/or contain
authorization for either a 4-day or a 3-day pass to attend training.

7.  The applicant alleges that his "important documents" were torn up by
his superiors after his sentencing.  There is nothing in writing to
indicate the applicant addressed this issue with his command prior to or at
the time of his separation.  The applicant's allegation is therefore, not
supported by the available evidence.

8.  The applicant's post service conduct has been noted.  However, good
post service conduct alone is not a basis for upgrading a discharge and
does not mitigate his indiscipline in the Army.

9.  Based on his record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable
discharge.

10.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 1986; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 13 March 1989.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 March 2001, the date of the ADRB
reviewed his request and returned it with no action; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on14 March 2004.  In the absence of such evidence, it is
not in the interest of justice to excuse the applicant's failure to timely
file within the 3-year statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MD___  ____TO__  ___YM___  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.




                  __Melinda Darby____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006445                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/06/30                              |
|TYPE OF DISCHARGE       |GD, UHC                                 |
|DATE OF DISCHARGE       |1986/03/14                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Patterns of misconduct                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |director                                |
|ISSUES         1.       |A144.0000                               |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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