RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:    1 December 2005
      DOCKET NUMBER:  AR20050002603


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Richard G. Sayre              |     |Member               |
|     |Ms. Maribeth Love                 |     |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 he be provided a report of
separation (DD Form 214) showing that he was honorably discharged on 20
December 1988.

2.  The applicant states, in effect, that he was honorably discharged at
Fort Carson, Colorado, and reenlisted on the next day for a period of 3
years.  He goes on to state that he was subsequently court-martialed and
spent almost 2 years in lock-up at Fort Riley, Kansas, until June 1991.  He
desires to have a copy of his DD Form 214 showing he was honorably
discharged on 20 December 1988.

3.  The applicant provides a copy of his DD Form 214 showing his
dishonorable discharge on 31 July 1992.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 July 1992.  The application submitted in this case is dated
8 February 2005.

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.  He enlisted in the Regular Army on 21 July 1986 for a period of 3 years
and assignment to Fort Carson as an infantryman.  He remained at Fort
Carson until 7 October 1987, when he was transferred to Korea.  He was
advanced to the pay grade of E-4 on 1 July 1988 and on 5 October 1988 he
was transferred back to Fort Carson.

4.  He was honorably discharged on 20 December 1988 for the purpose of
immediate reenlistment.  He reenlisted on 21 December 1988 for a period of
5 years and a selective reenlistment bonus.

5.  On 1 May 1989, the applicant’s commander initiated action to bar him
from reenlistment (locally imposed).  He cited as the basis for his
recommendation the applicant’s history of failure to pay phone bills and
video rentals, his failure of his skills qualification test, and his loss
of government equipment (Kevlar helmet and web gear).

6.  The applicant declined the opportunity to submit matters in his own
behalf and the battalion commander approved the bar to reenlistment on 12
June 1989.

7.  On 26 September 1989, he was convicted by a special court-martial of
assaulting a noncommissioned officer, being disrespectful in language
towards a noncommissioned officer, using provoking words towards a
noncommissioned officer, four specifications of uttering worthless checks,
and breaking restriction.  He was sentenced to a bad conduct discharge, a
forfeiture of pay, confinement for 4 months, and reduction to the pay grade
of E-1.

8.  On 18 December 1989, he was convicted by a general court-martial of two
specifications of assault consummated by battery, obstructing justice, and
communicating a threat to injure.  He was sentenced to a dishonorable
discharge, forfeiture of all pay and allowances for 18 months, and
confinement for 17 months and 5 days.

9.  After the appellate review was completed and his sentence and discharge
were affirmed, he was dishonorably discharged pursuant to a duly reviewed
and affirmed court-martial conviction on 31 July 1992.  He had served
4 years, 6 months, and 18 days of total active service and had 633 days of
lost time due to imprisonment.

10.  Army Regulation 635-5 serves as the authority for preparation and
issuance of the DD Form 214.  It provides, in pertinent part, that
effective 1 October 1979 a DD Form 214 would not be issued for immediate
reenlistments in which there was no break in service of more than 1 day.
Prior to 1 October 1979, a DD Form 214 was issued at every reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  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.


2.  The applicant was properly not issued a DD Form 214 on 20 December 1988
when he was discharged for the purpose of immediate reenlistment on
21 December 1988.  Accordingly, there is no basis to grant his request.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1992; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
30 July 1995.  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

_MBL____  ___JTM__  _RGS__  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.




            ___   John T. Meixell____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050002603                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/01                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |189/DD 214                              |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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