RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 August 2005
      DOCKET NUMBER:  AR20050004113


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Mr. Robert Rogers                 |     |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 that his general (under honorable conditions)
discharge be upgraded to an honorable discharge.

2.  The applicant states that his DD Form 214 (Certificate of Release or
Discharge from Active Duty) needs to read "Honorable instead of Pattern of
misconduct."

3.  The applicant provides a copy of his DD Form 214 in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 4 January 1990, the date of his release from active duty.
 The application submitted in this case is dated 1 March 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 that he enlisted in the Regular Army and
entered active duty on 3 June 1985.  He was trained in, awarded, and served
in military occupational specialty (MOS) 31M10 (Multichannel Communications
Systems Operator) and the highest rank he attained while serving on active
duty was specialist/pay grade E-4.

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.

5.  The record reveals a disciplinary history that includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following three separate
occasions for the offenses indicated:  [date not legible on the form], for
being drunk while on duty;
27 January 1988, assault on a fellow Soldier; and 7 November 1989, for
breaking a medical quarantine, dereliction of duty, failure to polish his
boots, and failure to follow a lawful order.

6.  The applicant's records also show that the applicant was given five
General Counseling Forms during the period 21 April 1986 through 5 October
1989 for various offenses including being drunk on duty, fighting, failure
to follow orders, and breaking restrictions.

7.  On 16 November 1989, the applicant’s unit commander advised the
applicant that he intended to recommend his separation from the Army under
the provisions of paragraph 14-12b of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), for a pattern of misconduct.  The
unit commander also advised the applicant of his rights.

8.  On 17 November 1989, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action, its effects
and of the rights available to him.  Records show that the applicant
submitted a statement in his own behalf which essentially stated that his
troubles were in the past, that he had not been given ample time to
rehabilitate himself and that he requested a rehabilitative transfer.
There is no evidence in the available records which show that the applicant
submitted a request for rehabilitative transfer through official military
channels or that such a request was granted.

9.  On 5 December 1989, the separation authority directed the applicant’s
separation under the provisions of Army Regulation 635-200, chapter 14, for
misconduct and directed that he receive a General Discharge Certificate.
On
4 January 1990, the applicant was discharged accordingly.  The DD Form 214
issued to him at the time, confirms the applicant completed a total of 4
years, 7 months, and 2 days of creditable active military service.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations

11.  Army Regulation 635-200 (Personnel Separations), currently in effect,
sets forth the basic authority for the separation of enlisted personnel.
Chapter 14 of this regulation establishes policy and prescribes procedures
for separating members for misconduct.  Specific categories include minor
disciplinary infractions, a pattern of misconduct, commission of serious
offense, conviction by civil authorities, desertion, or absences 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.  A discharge
under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member's service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general (under honorable conditions)
discharge should be upgraded to an honorable discharge.

2.  The evidence of record confirms his unit commander notified the
applicant of the contemplated separation action and that he consulted legal
counsel.  It further shows that the applicant was advised of the basis for
the contemplated separation action and its possible effects.

3.  The record confirms that all requirements of law and regulation were
met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of undistinguished service.

4.  The applicant's record of service included three nonjudical punishments
and five counseling statements for various offenses including being drunk
on duty, fighting, failure to follow orders, and breaking restrictions.

5.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  Therefore, he is not entitled to an honorable
discharge.

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


7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 4 January 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 3 January 1993.  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

__RJW___  _RR____  _JEV___  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.




                                     ___James E. Vick_
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050004113                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050818                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1990/01/04                              |
|DISCHARGE AUTHORITY     |AR .635-200 14-12b . . . .              |
|DISCHARGE REASON        |Pattern of misconduct                   |
|BOARD DECISION          |Deny                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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