RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050002651


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, an upgrade of his discharge.

2.  The applicant states, in effect, that he would like his discharge
upgraded because of an accident on 30 November 1983.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or
injustice, which occurred on 13 June 1985, the date he was separated from
active duty.  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 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’s record shows he enlisted in the Regular Army and
entered active duty on 24 February 1983 for a period of 3 years.  He was
trained in, awarded, and served in military occupational specialty (MOS)
13B10 (Cannon Crew Member).  The highest rank he attained while serving on
active duty was pay grade E-2.

On 30 November 1983, the applicant was in a motorcycle accident and was
admitted to Madigan Army Medical Center, Tacoma, Washington.  Surgery was
performed on the applicant where his spleen and his left kidney were
removed and a fasciotomy to the left thigh.

4.  On 29 December 1983, the applicant received a letter of reprimand for
his conduct on 30 November 1983, while operating a motor vehicle while
under the influence of alcohol.  The applicant acknowledged receipt of the
unfavorable information presented against him and elected not to make a
statement.

5.  On 5 November 1984, the applicant accepted nonjudicial punishment (NJP)
for failure to go at the prescribed time to his appointed place of duty.
His imposed punishment was a forfeiture of $75.00 pay (suspended for 3
months).

6.  Between January and March 1985, the applicant was formally counseled on
five separate occasions for leaving his appointed place of duty without
proper authority.

7.  On 18 March 1985, the applicant accepted NJP for disobeying a lawful
order.  His imposed punishment was a reduction to pay grade E-1, a
forfeiture of $144.00 pay (suspended for 4 months), and 14 days extra duty.


8.  On 7 May 1985, the applicant accepted NJP for being absent without
leave from 1 to 9 April 1985.  His imposed punishment was a forfeiture of
$144.00 pay, and 14 days restriction and extra duty.

9.  On 12 May 1985, a bar to reenlistment was imposed against the
applicant.  This action was based on the applicant’s pattern of misconduct.

10.  On 16 May 1985, the applicant was examined and was found mentally and
physically competent to withstand board judicial proceedings and he met
retention standards.

11.  On 21 May 1985, the commander notified the applicant that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14-12b, by reason of a pattern of misconduct.  The commander stated
that the applicant displayed a pattern of misconduct through AWOLs, failure
to repairs, writing bad checks, disobeying noncommissioned officers, and
continued Article 15 impositions.  He further stated that in view of the
aforementioned, he believes that it is in the best interest of the U.S.
Army to eliminate the applicant from service under the provisions of Army
Regulation 635-200, chapter 14-12b because of a pattern of misconduct.

12.  On 23 May 1985, the applicant consulted with legal counsel.  He was
advised by legal counsel of the basis for the contemplated action to
separate him for misconduct, under Army Regulation 635-200, chapter 14, and
of the rights available to him.  The applicant acknowledged that he
understood that he might expect to encounter substantial prejudice in
civilian life if a discharge less than honorable was issued to him.  After
being advised of the impact of the discharge action, he waived
consideration, personal appearance, and representation before a board of
officers.  The applicant did not submit a statement in his own behalf.

13.  On 11 June 1985, the appropriate authority approved the recommendation
and directed the issuance of an Under Other Than Honorable Conditions
(UOTHC) Discharge Certificate.  On 13 June 1985, the applicant was
discharged in pay grade E-1 under the provisions of Army Regulations 635-
200, chapter
14-12b, for misconduct-pattern of misconduct, with a discharge UOTHC.  He
had completed 2 years and 1 month of creditable active service.

14.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

15.  Army Regulation 635-200 sets forth the policy for the separation of
enlisted personnel.  Chapter 14 establishes policy and prescribes
procedures for separating members because of misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, conviction 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge should be upgraded
because of the accident that he was in on 30 November 1983, were carefully
considered and found to be insufficient in merit.  The applicant’s record
shows that the accident was due to his own misconduct, in which he later
received a letter of reprimand for his action.  Therefore, an upgrade of
his discharge is not warranted at this time.

2.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s acts of misconduct clearly diminished the overall quality of
his service below that meriting an honorable or a general discharge.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 June 1985.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
12 June 1988.  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

___SK __  __DJA __  __DRT __  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.




                                  ____   Stanley Kelley_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002651                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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