RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050004201


      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. G. E. Vandenberg              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 separation be voided, his
rank restored, his Montgomery GI Bill contributions be refunded to him, and
he be given back pay.

2.  The applicant states, in effect, that he was unjustly dismissed.  His
separation has resulted in an inability to either use his GI Bill
educational benefits or to have the monies he contributed refunded.  His
discharge has prevented him from obtaining a job despite over 40
applications and has forced him to live on the streets.

3.  The applicant provides a personal statement and a copy of his DD Form
214 (Certificate of Release or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 8 November 1989, the date separation from active duty.  The
application submitted in this case is dated 3 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 records show the applicant entered active duty on 13 November 1987,
completed training, was awarded the military occupational specialty (MOS)
16R (Vulcan Missile Crewmember), and stationed in Germany.

4.  The applicant was advanced to pay grade E-3 on 1 September 1988 with
reductions to E-2 on 20 December 1988 and E-1 on 6 March 1989.  The reason
for his reductions is not of record.

5.  The applicant received negative counseling statements on 26 July 1988,
for substandard performance on his skills testing; on 28 September 1988 and
8 December 1988, for disrespect toward noncommissioned officers (NCO); and
on 8 December 1988, for poor uniform and personal appearance.
6.  The applicant received nonjudicial punishment (NJP) under the
provisions of Article 15, Uniformed Code of Military Justice, on 2 August
1989 for unlawfully striking a fellow Soldier.  The punishment imposed was
forfeiture of $349.00 pay per month for two months, 45 days of extra duty,
and 45 days of restriction.

7.  On 20 September 1989 the applicant's command initiated separation
proceeding under the provisions of Army Regulation 635-200, paragraph 14-
12c for misconduct – commission of a serious offense, assault.  His unit
commander recommended he receive a general discharge.

8.  The applicant acknowledged he had been advised of and understood his
rights under the Uniform Code of Military Justice.  He acknowledged, if he
received a general discharge (GD), it would deprive him of many of his
benefits as a veteran and that he could expect to experience substantial
prejudice in civilian life.  He acknowledged that there is no automatic
upgrading or review of a less than honorable discharge.  He elected not to
submit a statement on his own behalf.

9.  On 12 October 1989 a summary court-martial found the applicant guilty
of damaging government property and breaking restriction.  He was sentenced
to forfeiture of $466.00 pay per month for one month and 30 days
confinement.

10.  The separation authority approved the discharge recommendation and
directed that the applicant be discharged with a general discharge.

11.  The applicant was discharged on 8 November 1989 in pay grade E-2 with
a GD.  He had 1 year, 11 months, and 26 days of creditable service.

12.  On 15 July 1992, the Army Discharge Review Board (ADRB) denied the
applicant's request to upgrade his discharge and did not deem it
appropriate to change his narrative reason for discharge.

13.  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.  Specifically
paragraph 14-12c is for a pattern of misconduct, commission of a serious
offense, conviction by civil authorities, absence without leave, or other
actions that a punitive discharge is authorized under the UCMJ.  Action
will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.

14.  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.

15.  Title 38, United States Code, Chapter 30, established eligibility
requirements for participation in the Veterans' Educational Assistance Act
of 1984, the New GI Bill (commonly referred to as the Montgomery GI Bill).
It provided that individuals who entered an initial period of active duty
on or after 1 July 1985 would be automatically enrolled in the program
unless they opted to disenroll within a specific time frame established by
the individual services.  Once enrolled in the New GI Bill the individual's
basic pay was reduced $100.00 per month for each of the first full 12
months of active duty and could not be refunded, suspended or stopped.  An
honorable discharge is required for receipt of entitlements, which amount
to $300.00 per month for 36 months, for individuals who completed at least
3 years of active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided no documentation to support any of his
allegations of wrongdoing on the part of the Army.

2.  The specifics of why the applicant was twice reduced in pay grade are
not of record; however, they do not appear to be related to his court-
martial.  The is insufficient evidence to indicate that the reductions were
improper to warrant a restoration of his pay grade.

3.  The discharge proceedings were conducted in accordance with law and
regulations applicable at the time.  The character of the discharge is
commensurate with the applicant's overall record of military service.

4.  Without restoration of his pay grade or reinstating him to active duty
no back pay is warranted.

5.  There are no provisions for Soldiers to receive a refund of monies
contributed under the Montgomery GI Bill.

6.  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.

7.  Record shows the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 July 1992.  As a
result, the time for the application to file a request for correction of
any error or injustice to this Board expired on 14 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

__JCH___  __REB__  __JRM__  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 C. Hise_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050004201                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Grant                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110                                     |
|2.                      |110.02                                  |
|3.                      |128                                     |
|4.                      |129                                     |
|5.                      |133                                     |
|6.                      |                                        |


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