RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2005
      DOCKET NUMBER:  AR20040011488


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Thomas E. O'Shaughnessy, Jr.  |     |Member               |
|     |Mr. Patrick H. McGann, Jr.        |     |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 general discharge be upgraded to
honorable.

2.  The applicant states he completed his enlistment and was allowed to
reenlist. He contends he cannot use his Department of Veterans Affairs
(DVA) benefits and believes he is entitled to them based upon his first
period of honorable service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge From Active Duty) for the period 1990-08-28 to 1995-02-
28.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 February 1995.  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 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 enlisted in the Regular Army for 4 years on 28 August
1990.  Trained as an infantryman, he served honorably until 14 March 1994,
when he was separated for the purpose of immediate reenlistment.  He
reenlisted for 3 years on 15 March 1994.

4.  On 10 January 1995, the applicant was notified by his commander that he
was being processed for discharge under the provisions of chapter 14, Army
Regulation (AR) 635-200 for a pattern of misconduct, specifically
disorderly conduct (for which he received nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice), disturbing the peace,
disrespect to a noncommissioned officer (NCO), failure to pay just debts,
making false official statements, and numerous failures to repair.  The
applicant acknowledged notification.

5.  The applicant consulted legal counsel on 24 January 1995 and the bases
for the discharge action and the rights available to him were fully
explained.

6.  The administrative separation packet was processed and forwarded to the
approving authority with a recommendation the applicant receive a general
discharge.  On 1 February 1995, the approving authority accepted the
recommendation and directed the applicant be discharged with a general
discharge under the provisions of chapter 14, AR 635-200 for misconduct.

7.  The applicant was discharged on 28 February 1995 with a general
discharge under the provisions of chapter 14, AR 635-200 for misconduct.
He had 4 years, 6 months, and 3 days of creditable active service.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Essentially, it states an honorable
discharge is a separation with honor, and is appropriate when the quality
of the Soldier’s service is so meritorious that any other characterization
would be clearly inappropriate.  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.

9.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking
a discharge upgrade.  The ADRB, after considering his case on 16 January
1997, denied his request.

10.  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 served from August 1990 to March 1994 without significant
incident.  Following his reenlistment on 15 March 1994, he demonstrated a
pattern of behavior marked by incidents of misconduct which prompted his
chain of command to initiate administrative discharge action against him.

2.  The applicant’s discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  The character of the discharge
is commensurate with the applicant's overall record of military service.

3.  Eligibility for DVA benefits does not fall within the purview of the
Army Discharge Review Board.  Accordingly, the applicant should contact a
local office of the Department of Veterans Affairs for further assistance.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 16 January 1997, the date the ADRB
rejected his request for an upgrade; therefore, the time for the applicant
to file a request for correction of any error or injustice expired on 15
January 2000.  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

__jch___  __teo___  __phm___  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.



                                        James C. Hise
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011488                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050920                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19950228                                |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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