RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050006189


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Andersen                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states that he never missed a morning formation, barracks
inspection, or training exercise; he never left his weapon unsecured; and
he paid all his debts.

3.  The applicant provides no documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 August 1988.  The application submitted in this case is
dated 1 April 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 enlisted in the Regular Army on 29 July 1987 for a period
of three years.  He completed basic combat training and advanced individual
training and was awarded military occupational specialty 76C (Equipment
Records and Parts Specialist).  He was advanced to private E-2 on 29
January 1988 and was assigned to Fort Riley, Kansas.

4.  On 25 February 1988 and 6 April 1988, the applicant received adverse
counseling statements for failure to pay a hotel bill, failure to repair,
disobeying a lawful order, and failure to be ready for a standby
inspection.

5.  The applicant's personnel records contain a letter dated 14 April 1988
from the Municipal Judge, City of Earle, Arkansas.  The Municipal Judge
informed the unit commander that, while the applicant was home on leave, he
had committed an assault on a teenager and he was convicted in Earle
Municipal Court on a charge of assault in the second degree.  The letter
indicated the applicant signed a waiver of his right to counsel and pled
guilty to the charge.  He was ordered to pay $282.00 in costs and fines and
to pay $115.00 into the city treasury as restitution to the victim of the
assault for hospital and doctor bills.  He was further given a 30-day term
in the county jail and all the jail time was suspended on the conditions
that he would pay the fines, costs, and restitution.  The letter further
indicated the applicant wrote two checks for the fine and costs and both
checks were returned by the bank for insufficient funds.

6.  During the period 22 April 1988 through 20 May 1988, the applicant
received four adverse counseling statements for writing bad checks at the
Fort Riley Exchange and at the Court of Earle, Arkansas, larceny and
wrongful appropriation of a telephone credit card number, and failure to
report to morning formation.

7.  On 24 May 1988, a bar to reenlistment was initiated against the
applicant for a record of non-payment of debts on seven occasions during
the period
23 February 1988 through 19 May 1988.  The bar to reenlistment indicated he
received counseling for failure to repair and disobeying a lawful order.
The bar to reenlistment was approved on 1 June 1988.

8.  On 26 May 1988 and 1 June 1988, the applicant received two adverse
counseling statements for unsatisfactory performance, failure to be at
place of duty at prescribed time, and failure to secure weapon.

9.  The applicant accepted nonjudicial punishment under Article 15, Uniform
Code of Military Justice (UCMJ) on 3 June 1988 for being absent from his
unit to avoid field exercise and for being derelict in the performance of
his duties by negligently failing to keep his weapon secured.  His
punishment consisted of a reduction to E-1, extra duty of 45 days, and a
forfeiture of $375.00 pay for 1 month.

10.  On 7 June 1988, the applicant received two adverse counseling
statements for willfully damaging non-military property, failure to pay
court and assault fines, failure to be at place of duty at prescribed time,
and failure to report to the charge of quarters for extra duty.

11.  On 16 June 1988, the applicant accepted nonjudicial punishment under
Article 15 for failing to go to his appointed place of duty.  His
punishment consisted of restriction for 20 days.

12.  On 21 June 1988, the applicant’s unit commander notified him of
pending separation action under the provisions of Army Regulation 635-200,
paragraph 14-12b for pattern of misconduct and advised him of his rights.
The unit commander stated the reason for the proposed separation action was
the applicant's continual display of misconduct for repeated dishonored
checks and failure to pay just debts.
13.  On 21 June 1988, the applicant acknowledged notification of separation
action, consulted with legal counsel, voluntarily waived consideration of
his case by an administrative separation board contingent upon him
receiving a characterization of service no less favorable than a general
under honorable conditions discharge, and did not submit statements in his
own behalf.  He understood that he could, up until the date the separation
authority orders, directed, or approved his separation, withdraw this
waiver and request than an administrative separation board hear his case.

14.  On 28 July 1988, the applicant again consulted with legal counsel,
waived consideration of his case by an administrative separation board,
waived a personal appearance before a board, and did not submit statements
in his own behalf.

15.  The applicant was absent without leave (AWOL) from 16 August 1988 to
18 August 1988.

16.  On 25 August 1988, the separation authority waived rehabilitative
requirements and approved the applicant's discharge under the provisions of
Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of
misconduct with issuance of an UOTHC discharge.

17.  The applicant was AWOL again from 26 August 1988 to 30 August 1988.

18.  The applicant was discharged from active duty on 30 August 1988 with
an UOTHC discharge.  He completed 1 year and 25 days of creditable active
military service with 7 days of lost time.

19.  There is no evidence which indicates that the applicant applied to the
Army Discharge Review Board within its 15-year statute of limitations.

20.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed procedures for separating members for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  Action would be taken to separate a member for misconduct
when it was clearly established that rehabilitation was impracticable or
was unlikely to succeed.
A discharge UOTHC was normally appropriate for a Soldier discharged under
this chapter.  However, the separation authority may direct a general
discharge if such is merited by the Soldier’s overall record.  Only a
general court-martial convening authority may approve an honorable
discharge or delegate approval authority for an honorable discharge under
this provision of regulation.
21.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier's
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

22.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant's service record shows he received two Article 15s, a bar
to reenlistment, a conviction by a civilian court for assault on a
teenager, several adverse counseling statements, and two periods of AWOL.
As a result, his record of service was not sufficiently meritorious to
warrant an honorable or general discharge.

3.  The character of the discharge is commensurate with the applicant's
overall record.

4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge issued to him was in error or
unjust.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 August 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 August 1991.  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

TP______  EA______  JS______  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.




                                  Thomas Pagan__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006189                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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