RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 June 2005
      DOCKET NUMBER:  AR20040008376


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. Mcgann Jr.         |     |Member               |
|     |Ms. Laverne M. Douglas            |     |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 narrative reason for separation be
changed on his DD Form 214 (Certificate of Release or Discharge from Active
Duty).

2.  The applicant states, in effect, that his current narrative reason for
separation of misconduct - commission of a serious offense is an inflamed
and fictitious statement.  He further states that during his Article 15
proceedings his rights were violated by his first sergeant for not allowing
his witness and a letter from the accuser be submitted as evidence.

3.  The applicant provides a DD Form 214.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant's request that his narrative reason
for separation be changed on his DD Form 214.

2.  Counsel states, in effect, that the American Legion rests assured that
the final decision of Army Board for Correction of Military Records (ABCMR)
will reflect sound equitable principles consistent in law, regulation,
policy and discretion as promulgated by Title 10, U. S. Code, section 1552,
and as set forth in 32 Code of Federal Regulations, section 581.3.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 December 1991.  The application submitted in this case is
dated 2 September 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 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 5 June 1989 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 44B (Metal Worker).

4.  On 20 June 1991, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for striking a
fellow Soldier with a pool stick and disobeying a lawful order from a
senior non-commissioned officer.  The DA Form 2627 (Record of Proceedings
Under Article 15) shows in item 3 that he placed his initials in the blocks
for (1) elected a closed hearing, (2) person to speak in his behalf, and
(3) matters in defense, mitigation, and/or extenuation "are not presented."
 He appealed the Article 15.

5.  On 26 June 1991, the Acting Chief of Criminal Law at Fort Carson,
Colorado determined that the applicant's Article 15 proceeding was
conducted in accordance with law and regulations.

6.  On 26 June 1991, the applicant was summoned to appear before the
Municipal Court of the City of Pueblo, Colorado on the charge of disorderly
conduct.  Records show that he was counseled for being fined and expelled
from the Citadel Mall.

7.  On 19 July 1991, the appropriate authority denied the applicant's
Article 15 appeal.

8.  On 20 August 1991, the first sergeant of the applicant was notified by
letter from the United Bank of Colorado Springs, Colorado that the
applicant was four months past due on his automobile loan payments.

9.  On 2 October 1991, the applicant underwent a mental evaluation by a
medical physician that determined that he could distinguish right from
wrong and that he possessed sufficient mental capacity to understand and
participate in administrative or judicial proceedings.

10.  On 9 October 1991, the applicant completed the Alcohol and Drug Abuse
Prevention and Control Program (ADAPCP) at Fort Carson, Colorado.  The
counselor assessed the applicant's progress during rehabilitation as
unsatisfactory and further recommended separation to his commander.

11.  On 5 November 1991, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of chapter 14
of Army Regulation 635-200 (Personnel Separations), for misconduct.  The
reason cited by the commander was the applicant’s assault on a fellow
Soldier, failure to pay his debts, his drunk and disorderly conduct, and
that he received seven letters of counseling for unsatisfactory job
performance.  He recommended that the applicant receive a general
discharge.


12.  On 6 November 1991, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-200.  The applicant
declined to submit a statement on his own behalf.

13.  On 13 November 1991, the appropriate authority approved the
recommendation and directed the applicant receive a discharge under
honorable conditions under the provisions of chapter 14 of Army Regulation
635-200 for misconduct - commission of a serious offense.  On 3 December
1991, he separated with 2 years, 5 months, and 29 days of creditable active
service and had no lost time.

14.  On 6 May 1998, the Army Discharge Review Board (ADRB) considered the
applicant’s request to change the characterization of his discharge.  The
ADRB unanimously determined that the characterization was equitable as
under honorable conditions and the reason for his discharge was proper.

15.  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, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.

16.  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 (Army Regulation 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 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.  Records show that the applicant received one Article 15 for assault on
a fellow Soldier in addition to being fined by civil authorities for drunk
and disorderly conduct, failing to pay his debts, receiving seven letters
of counseling for unsatisfactory performance, and that his ADAPCP
rehabilitation assessment was unsatisfactory and that he was recommended
for separation.  Based on the assault, it appears he was properly given a
narrative reason of misconduct -commission of a serious offense.

2.  Evidence of record shows that the Article 15 proceedings were conducted
in accordance with the law and regulations.  His DA Form 2627 shows he
elected to have a person speak in his behalf and did not wish to present
matters in his defense, mitigation, and/or extenuation.  There is no
evidence and the applicant has not provided evidence that shows his first
sergeant would not allow a witness or evidence to be presented in his
proceeding.  Therefore, there is no basis for this argument.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

4.  In the absence of 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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 6 May 1998, the date of the ADRB
action; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 5 May 2001.  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

_ MKP __  __ PHM  _  __ LMD _  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.




                                  __ Ms. Margaret K. Patterson __
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008376                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 June 2005                            |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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