RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           28 July 2005
      DOCKET NUMBER:   AR20040011078


      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. Wanda L. Waller               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William Powers                |     |Chairperson          |
|     |Mr. Larry Bergquist               |     |Member               |
|     |Mr. James Gunlicks                |     |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 narrative reason for
separation be changed or that his discharge proceedings be permanently
removed from his military records.

2.  The applicant states, in effect, that his narrative reason for
separation is unjust for the following reasons:  (1) there is not enough
evidence to support it; (2) there is no evidence in his military records to
support the reasons cited by his unit commander for separation (repeated
failures to repair, disrespect, disobedience, and violation of a general
regulation) or the reason cited for waiving a rehabilitative transfer
(resisting rehabilitation attempts); and (3) that Army Regulation 635-200,
chapter 14, states that there must be a legitimate indication that the
separation authority needs in order to process a separation.
3.  The applicant provides copies of his service personnel records; his
discharge proceedings; and excerpts from Army Regulation 635-200 (Enlisted
Personnel) pertaining to Chapter 14 (Separation for Misconduct).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 November 1998.  The application submitted in this case is dated 10
December 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 on 1 March 1994 for a period of 3 years.  He
served as a medical specialist and was honorably discharged on 13 January
1997 for immediate reenlistment.  He reenlisted on 14 January 1997 for a
period of 3 years.

4.  On 22 July 1998, the applicant was notified of his pending separation
for misconduct due to a pattern of misconduct.  The unit commander
recommended that the applicant be issued a general discharge and cited that
the applicant had repeatedly failed to go at the time prescribed to his
appointed place of duty, displayed disrespect to a noncommissioned officer,
disobeyed a noncommissioned officer, and violated a lawful general
regulation.  The unit commander also recommended that the requirement for a
rehabilitative transfer be waived and based this recommendation on the
determination that further duty of the applicant would be inappropriate
because he was resisting rehabilitation attempts.  On 22 July 1998, the
applicant consulted with counsel and requested appearance before a board of
officers.  The board of officers recommended separation under the
provisions of Army Regulation 635-200, chapter 14, for a pattern of
misconduct and that the applicant be furnished a general discharge.  On 15
October 1998, the separation authority approved the findings and
recommendations of the board of officers, waived further rehabilitative
efforts and directed that the applicant be discharged with a general
discharge.

5.  On 5 November 1998, the applicant was discharged with a general
discharge under the provisions of Army Regulation 635-200, chapter 14, for
misconduct.  On 28 July 2004, the Army Discharge Review Board (ADRB)
upgraded the applicant's discharge to honorable and voted not to change his
narrative reason.
6.  Item 25 (Separation Authority) on the applicant's DD Form 214 shows the
entry, "AR [Army Regulation] 635-200, PARA [paragraph] 14-12B."  Item 26
(Separation Code) on his DD Form 214 shows the entry, "JKA."  Item 28
(Narrative Reason for Separation) on his DD Form 214 shows the entry,
"MISCONDUCT."

7.  Review of the applicant's Official Military Personnel File (OMPF)
reveals his administrative discharge proceedings in the general
administrative data section.

8.  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 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.

9.  Army Regulation 635-5-1 (Separation Program Designator Codes)
prescribes the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the separation program designators to be used for these stated
reasons.  The regulation states the reason for discharge based on
separation code “JKA” is “Misconduct” and the regulatory authority is Army
Regulation 635-200, chapter 14, paragraph 14-12b.

10.  Army Regulation 600-8-104 (Military Personnel Information
Management/Records) prescribes the policies governing the OMPF, the MPRJ
(Military Personnel Records Jacket), the Career Management Individual file,
and Army Personnel Qualification Records.  Table 2-1 of the regulation
provides, in pertinent part, that all allied documents for administrative
discharge actions will be filed in the service fiche of the OMPF in the
general administrative data section.

11.  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 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 date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  The applicant's contentions were noted.  However, his administrative
separation was accomplished in compliance with applicable regulations with
no indication of procedural errors which would tend to jeopardize his
rights.  In addition to the unit commander's recommendation for separation,
a board of officers also recommended that he be separated under the
provisions of Army Regulation 635-200, chapter 14, for a pattern of
misconduct.

3.  The narrative reason for separation used in the applicant’s case is
correct and was applied in accordance with the applicable regulations.

4.  The applicant's administrative discharge proceedings are properly filed
in the general administrative data section on his OMPF in accordance with
the governing regulation.  Therefore, there is no basis for permanently
removing these documents.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

WP____  LB______  JG_______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            __William Powers________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040011078                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050728                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0200                                |
|2.                      |126.0400                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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