RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 August 2005
      DOCKET NUMBER:  AR20040009915


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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 an record of nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice for driving under the
influence (DUI) and an associated bar to reenlistment be expunged from his
records.

2.  The applicant states that his blood alcohol level was lower than the
legal limit. The civilian case was dismissed and expunged from the record.
The unjustified military record disqualifies him from a job in law
enforcement.

3.  The applicant provides no supporting documentation.  He states that
there are none because they have all been expunged.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 17 February 1989.  The application submitted in this case is
dated 27 October 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 served on active duty for Army National Guard (ARNG)
initial training from 23 June to 16 August 1986 and was released to his
ARNG unit.  He enlisted and entered active duty in the Regular Army on 8
October 1997 and was stationed at Fort McClellan, Alabama.

4.  He received a 22 November 1988 NJP for absence from his unit and a
25 November 1988 administrative reprimand for a "constant pattern of
tardiness." He received another NJP, on 13 December 1989, for again being
absent from his unit.  The punishment included a suspended reduction to pay
grade E-3.  On 1 December 1988 restitution was required for writing a bad
check to the post exchange.  The suspended reduction  was vacated on 30
December 1988.

5.  The applicant was arrested for DUI on 3 February 1989 and a bar to
reenlistment was initiated on 6 February 1989.  The recommendation
mentioned the above incidents and several other counseling incidents for
being overweight, for missing formations and for failing or missing
physical fitness testing.  A 3 February 1989 counseling statement includes,
"I intend to begin action to separate you, not, for the alcohol-related
incident alone, but for your long, long chain of misdeeds."

6.  The applicant acknowledged receipt of the recommended bar to
reenlistment, indicated that he had been counseled and advised as to the
basis for the recommendation and declined to offer a statement in his own
behalf.  The bar was approved by the battalion commander.

7.  The applicant voluntarily requested discharge because he could not
overcome the bar to reenlistment.  The battalion commander approved his
request and directed that an honorable discharge be issued.

8.  On 17 February 1989 the applicant was separated under the provisions of
Army Regulation 635-200, chapter 16.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 16 covers discharges caused by
changes in service obligations.  Paragraph 16-5 applies to personnel denied
reenlistment and provides that Soldiers who receive DA imposed or locally
imposed bars to reenlistment, and who perceive that they will be unable to
overcome the bar may apply for immediate discharge.  Incident to the
request the member must state that he understands that recoupment of
unearned portions of any enlistment or reenlistment bonus is required and
that later reenlistment is not permitted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  The type of discharge
directed and the reasons therefore were appropriate considering all the
facts of the case.

2.  There is no indication that the applicant received NJP for the DUI
arrest and he clearly was not barred form reenlistment solely because of
the DUI arrest.

3.  The only evidence of record about the DUI incident states only that it
happened.  Even if the applicant had provided evidence to support his
contention that the charge was dismissed, that would not necessarily
warrant expunging the record of the arrest and it certainly would not
warrant expunging the bar to reenlistment which was warranted by the other
misconduct.
4.  Records show the applicant should have discovered the alleged injustice
now under consideration on 17 February 1989; therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 16 February 1992. 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

_KAN ___  __WDP__  __MJNT_  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.





            _    Kathleen A. Newman_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040009915                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050813                                |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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