RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 January 2005
      DOCKET NUMBER:  AR2004105278


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. James B. 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, eight days of additional active duty
service credit.

2.  The applicant states, in effect, the Department of Veterans Affairs
(VA) denied him medical care because he was eight days short of completing
two years
(24 months) of active service when he was discharged.  He claims the denial
of medical benefits could also be related to the fact that his service in
support of Operation Desert Storm is not recorded on his separation
document (DD Form 214).

3.  The applicant provides the address of the VA Regional Officer handling
his claim and a statement from his mother in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 25 March 1992.  The application submitted in this case was
received on 10 March 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’s record shows he enlisted in the Regular Army for 2
years and 23 weeks and entered active duty on 4 March 1990.  He was trained
in and awarded military occupational specialty (MOS) 16D (Hawk Missile
Crewmember) and the highest rank he attained while serving on active duty
was private first class (PFC).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
he served overseas in the following countries during the periods listed:
Germany, from 13 August through 14 December 1990; Saudi Arabia, from 15
December 1990 through 5 May 1991; and Germany, from 6 May 1991 through 24
March 1992.
5.  The applicant’s record further shows that during his active duty
tenure, he earned the National Defense Service Medal, Southwest Asia
Service Medal with 2 bronze service stars, Army Service Ribbon,
Sharpshooter Qualification Badge with Grenade Bar and Marksman
Qualification Badge with Rifle Bar.

6.  On 5 September 1991, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for stealing two personal checks from another Soldier and
two specifications of falsely signing the stolen checks.  His punishment
for these offenses included a reduction to private/E-1 (PV1).

7.  In February 1992, the unit commander notified the applicant of his
intent to initiate separation action against him under the provisions of
paragraph 14-12a, Army Regulation 635-200, for the commission of a serious
offense.  The unit commander cited the offenses for which the applicant
accepted NJP as the basis for the action.

8.  On 5 February 1992, the applicant acknowledged receipt of the
separation action notification and completed his election of rights.  He
declined the opportunity to consult with legal counsel and elected not to
submit statements in his own behalf.

9.  The separation authority approved the applicant’s separation under the
provisions of chapter 14, Army Regulation 635-200, for the commission of a
serious offense and directed that he receive a general, under honorable
conditions discharge.  On 25 March 1992, the applicant was discharged
accordingly.

10.  The DD Form 214 issued to the applicant on the date of his discharge,
25 March 1992, as amended, confirms he completed a total of 1 year, 11
months and 22 days of active military service.  Item 13 (Decorations,
Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized)
confirms he earned the National Defense Service Medal, Army Service Ribbon,
Southwest Asia Service Medal with 3 bronze service stars, Kuwait Liberation
Medal, Sharpshooter Qualification Badge with Grenade Bar and Marksman
Qualification Badge with Rifle Bar.  Item 18 (Remarks) documents the
applicant’s Southwest Asia service from 15 December 1990 through 4 May
1991.

11.  On 11 June 1996, the Army Discharge Review Board (ADRB), after
concluding that his separation was proper and equitable, denied the
applicant’s request for an upgrade of his discharge.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that he be granted eight days of additional
active duty service in order to qualify for VA medical benefits was
carefully considered.  However, there is an insufficient evidentiary basis
to support granting this requested relief.

2.  The evidence of record confirms all requirements of law and regulation
were met and the rights of the applicant were fully protected throughout
his separation process.  Further, the record shows he was separated due to
his own misconduct and his DD Form 214 accurately reflects the active duty
service he completed as of the date of his discharge.  As a result, there
is no error to the active duty service credit he received and there is no
basis to support granting him service credit for active duty service he did
not actually perform.

3.  The applicant also alluded to the fact that he may have been denied VA
medical benefits because his service during Operation Desert Storm was not
documented on his separation document.  However, his DD Form 214 clearly
documents his Southwest Asia Service in Item 18.  Further, Item 13 confirms
he received the Southwest Asia Service Medal with 3 bronze service stars
and Kuwait Liberation Medal, which further corroborate this service.

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

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1992.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 24 March 1995, However, he 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

__JBG__  ___RLD__  __KAH__  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.




            ____Karen A. Heinz______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105278                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-01-04                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1992/03/25                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Commission of Serious Offense           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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