RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 June 2005
      DOCKET NUMBER:  AR20040008204


      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. Betty A. Snow                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Carol A. Kornhoff.            |     |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, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his discharge came after he had
committed an offense that he was embarrassed about.  As a result of this
embarrassment over this offense, he agreed to being processed for
separation when he was asked.  He further states that although the offense
he committed was an isolated event, he was just embarrassed and humiliated
and took the easiest solution.  He claims that he has long since regretted
his decision and asks for mercy.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 24 September 1991.  The application submitted in this case
is dated 20 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 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’s record shows that he enlisted in the Army and entered
active duty on 7 November 1989.  He was trained in, awarded and served in
military occupation specialty (MOS) 13B10 (Cannon Crewmember).  His
Personnel Qualification Record (DA Form 2-1) shows, in item 18 (Appointment
and Reductions), that he was promoted to private first class (PFC) on 1 May
1990, and that this was the highest rank he attained while serving on
active duty.

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record does
reveal a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on two separate occasions.
5.  On 3 April 1991, the applicant accepted NJP for being absent without
leave (AWOL).   His punishment included a reduction to private/E-2 (PV2),
forfeiture of $197.00 and 14 days of extra duty and restriction.

6.  On 12 July 1991, the applicant accepted NJP for wrongfully using
marijuana.  His punishment included reduction to private/E-1 (PV1),
forfeiture of $200.00 per month for 2 months and 19 days of extra duty and
restriction.

7.  On 4 September 1991, the unit commander notified the applicant he was
initiating separation action on him under provision of chapter 14,
Army Regulation 635-200.  The unit commander cited the applicant’s patterns
of misconduct as the reason for taking the action.

8.  On 4 September 1991, the applicant consulted with legal counsel and was
advised of the basis for contemplated separation and its effects, the
rights available to him and of the effect of a waiver of those rights.
Subsequent to counseling, the applicant elected not to submit a statement
in his own behalf.

9.  On 9 September 1991, the separation authority directed the applicant’s
separation under the provision of paragraph 14-12b, Army Regulation 635-
200, and that he receive a GD.  On 24 September 1991, the applicant was
discharged accordingly.  The DD Form 214 he was issued at the time confirms
that he completed a total of 1 year, 10 months and 16 days of creditable
active military service and held the rank of PV1 at the time of his
discharge.  It also erroneously indicates that the applicant was separated
under the provisions of paragraph 14-12c, Army Regulation 635-200, by
reason of misconduct, abuse of illegal drugs.

10.  On 27 October 1995, after finding his discharge was proper and
equitable, the Army Discharge Review Board (ADRB) denied the applicant’s
request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 contains the policy guidance for separation
by reason of misconduct.  The issuance of a discharge under other than
honorable conditions is normally considered appropriate; however, an
honorable discharge or GD are authorized.

12.  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 Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records
(ABCMR) should commence on the date of final action by the ADRB.  In
complying with this decision, the ABCMR 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’s contention that he accepted discharge because he was
embarrassed over an isolated offence he committed was carefully considered.
 However, this factor is not sufficiently mitigating to warrant the
requested relief.

2.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with applicable regulations.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.  Finally,
the record shows the character of the applicant’s discharge accurately
reflects his overall record of service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 27 October 1995.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 26 October 1998.  However, he 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 file in this case.

5.  During this review, an administrative error was discovered in the
authority and reason for separation listed on the applicant’s DD Form 214.
The record confirms his discharge was approved under the provisions of
paragraph 14-12b, Army Regulation 635-200, by reason of misconduct,
patterns of misconduct.
6.  However, the authority and reason for discharge entered on the
applicant’s DD Form 214 erroneously shows he was separated under the
provisions of paragraph 14-12c, by reason of misconduct, abuse of illegal
drugs.  This error is an administrative matter that does not require Board
action.  Thus, correction of his records will be accomplished by the Case
Management Support Division (CMSD), St. Louis, Missouri, as outlined by the
Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section
below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MHM   ___LE___  ___CAK _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the
individual should be corrected.  Therefore, the Board requests the CMSD-St.
Louis administratively correct his records by amending his DD Form 214 to
show he was separated under the provisions of paragraph 14-12b, Army
Regulation
635-200, by reason of misconduct (patterns of misconduct), and by
correcting all items of the DD Form 214 that are impacted by this change in
the authority for his separation; and by providing him a new DD Form 214
that reflects these corrections.




                                  ____Melvin H. Meyer      __
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040008204                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-06-09                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1991/09/24                              |
|DISCHARGE AUTHORITY     |AR 635-200; Ch-14. . . . .              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]