RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JUNE 2004
      DOCKET NUMBER:   AR2004100257


      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. Gale J. Thomas                |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Samuel Crumpler               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Linda Barker                  |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states, in effect, that at the time he was out-processing
he was informed that his discharge would be upgraded after 6 months.  He
detected that his discharge had not been upgraded when he applied for a
Government job.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 24 May 1985.  The application submitted in this case is dated
19 October 2003.

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 in the Regular Army on 10 June 1983, for a
period of
4 years.

4.  On 21 May 1984, the applicant received a Letter of Reprimand after
being convicted in U.S. Magistrate Court of driving while intoxicated.

5.  On 3 April 1985, he was convicted by a civil court of stealing.  He was
sentenced to 5 years probation.

6.  On 1 May 1985, the applicant was informed by his commander that he was
initiating action to separate him from the service due to his conviction by
a civil court, under the provisions of Army Regulation 635-200, Chapter 14.
 He was informed of his rights and waiver privileges.

7.  On 3 May 1985, after consulting with legal counsel, the applicant
acknowledged that he was not entitled to have his case heard by an
administrative separation board, that he would not be submitting a
statement in his own behalf, and that he understood that if he was issued a
general discharge he might encounter substantial prejudice in civilian
life.

8.  On 6 May 1985, the applicant’s intermediate commander recommended
approval of the discharge.

9.  On 10 May 1985, a Mental Status Evaluation cleared the applicant for
separation.

10.  On 15 May 1985, the appropriate separation authority approved the
applicant’s discharge under the provisions of Army Regulation 635-200,
chapter 14, and directed the issuance of a general discharge.

11.  On 24 May 1985, the applicant was separated under the provisions of
Army Regulation 635-200, chapter 14.  His DD Form 214 (Certificate of
Release or Discharge from Active Duty) indicates he was discharged in the
pay grade of E-3, and had 1 year, 11 months, and 15 days of active service.


12.  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,
and 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 impractical or unlikely.

13.  Army Regulation 635-200 also states that an honorable discharge is a
separation with honor.  The honorable characterization is appropriate when
the quality of the soldier’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.

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.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  There is no evidence, nor did the applicant provide documentation to
support  his contention that he was told his discharge would be upgraded
after
6 months.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
23 May 1988.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

__SC ___  ___LE___  ___LB __  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.




            ___ Samuel Crumpler____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100257                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040629                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |