RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          21 December 2004
      DOCKET NUMBER:  AR2004105306


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Seema E. Salter               |     |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 general discharge (GD)
under honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that 6 months after he was separated
he requested that his discharge be upgraded, but he never received an
answer.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
7 April 1995.  The application submitted in this case is dated 8 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.  Prior to the period of enlistment under review, the applicant served in
the Regular Army (RA) from 21 August 1992 to 15 August 1994 until he was
honorably separated for immediate reenlistment.  He was not issued a DD
Form 214 (Certificate of Release or Discharge from Active Duty) at the time
of separation.

4.  On 16 August 1994, the applicant reenlisted in the RA for 3 years, his
prior military occupational specialty (MOS) 62J (General Construction
Equipment Operator), and for his current station of assignment, which was
Fort Hood, Texas.

5.  Between October 1994 and April 1995, the applicant was counseled for
various reasons, to include:  numerous instances of failure to report;
failure to obey an order on three separate occasions; numerous instances of
failure to go to his appointed place of duty at the prescribed time;
failure to meet the minimum Army Physical Fitness Standards; and for
failure to resolve his financial problems.



6.  On 18 October 1994, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military (UCMJ) was imposed against the
applicant for disobeying a lawful order by driving a privately-owned
vehicle in an unauthorized area on 17 October 1994.  His punishment
included 9 days of extra duty.

7.  On 27 January 1995, NJP was imposed against the applicant for failure
to go to his appointed place of duty at the time prescribed on 24 January
1995.  His punishment included 11 days of extra duty and restriction.

8.  On 14 February 1995, NJP was imposed against the applicant for failure
to obey a lawful order given by a commissioned officer on 23 December 1994
and for failure to go to his appointed place of duty at the time prescribed
on 8 February 1995.  His punishment included reduction from pay grade E-3
to pay grade E-2 and 14 days of extra duty and restriction.

9.  On 25 October 1994, the applicant was placed on the Army Weight Control
Program because he failed to meet the Army weight standards.  He was still
in the program at the time of separation.

10.  On 23 January 1995, a bar to reenlistment was initiated against the
applicant.  The above NJP's and two delinquent payments on a deferred
payment plan were cited as the bases for the bar to reenlistment.

11.  On 23 February 1995, the applicant was officially notified that he was
being recommended for discharge under the provisions of chapter 14, Army
Regulation
635-200, for misconduct with a GD.  He was also advised of his rights.

12.  On the same date, the applicant consulted with a legal representative
and acknowledged that he understood the ramifications associated with a GD.
 He declined to submit a statement in his own behalf.

13.  The applicant's unit commander recommended separation with a GD.  On
27 February 1995, the intermediate commander recommended approval with a
GD.  On 17 March 1995, the approval authority waived further rehabilitative
requirements, approved the recommendation and directed that the applicant
be separated for misconduct with a GD.

14.  On 7 April 1995, the applicant was separated with a GD under the
provisions of chapter 14, Army Regulation 635-200, due to misconduct.  He
had completed 2 years, 2 months and 17 days of creditable military service
and he had no recorded lost time.

15.  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, 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.  Army policy states that a GD is
considered appropriate.

16.  On 24 February 1999, the Army Discharge Review Board denied the
applicant’s request for an upgrade of his discharge.

17.  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's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would have jeopardized his rights.  The type of discharge
directed and the reasons were appropriate considering all the facts of the
case.

2.  The available evidence does not show the applicant appealed to this
Board for an upgrade of his discharge, prior to this review.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 24 February 1999.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 23 February 2002.  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

__fe____  __pms___  __ses___  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.


                                  Fred Eichorn
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105306                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041221                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19950407                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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