RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050006436


      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. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Della 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 that his under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states he was a very strong drinker at the time of his
separation and his discharge was a result of his drinking.  He also states
he did not harm anyone but himself.  The applicant concludes he completed 2
years and 7 months of his 3-year obligation.

3.  The applicant did not provided any documentary evidence in support of
this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 17 May 1983, 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 8 October 1980.  He was trained in, awarded, and
served in military occupational specialty (MOS) 13B10 (Cannon Crewman) and
the highest rank he attained while serving on active duty was private first
class/pay grade E-3.

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 two separate
occasions for the offenses indicated:  10 November 1982, for failure to go
to his appointed place of
duty on 29 October 1982 (2 offenses) and for failure to go to his appointed
place of duty on 1 November 1982; and on 17 December 1982, for breaking
restriction during the period 3 December 1982 to 6 December 1982.

6.  Records show the applicant was enrolled in the Fort Sill Alcohol and
Drug Prevention and Control Program.  Records further show he failed to
attend counseling sessions and it was subsequently determined by the
clinical director that rehabilitation efforts for the applicant were not
practical.

7.  The applicant's records also contain two military police reports which
show the applicant struck a parked vehicle with his vehicle and then fled
the scene.  These reports further show the applicant was charged with
driving under the influence, leaving the scene of an accident, and auto
theft.

8.  On 28 March 1983, the applicant’s unit commander advised the applicant
that he intended to recommend his separation from the Army under the
provisions of paragraph 14-12 of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), for misconduct.  The unit commander
also advised the applicant of his rights.

9.  On 28 March 1983, the applicant acknowledged that he was advised of the
basis for the contemplated separation action, its effects and of the rights
available to him.  He also acknowledged his right to consult with counsel;
however, he waived his right to do so.  Records show that the applicant
elected not to submit a statement in his own behalf.  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.

10.  On 12 May 1983, the separation authority directed the applicant’s
separation under the provisions of chapter 14 of Army Regulation 635-200,
for misconduct and directed that he receive an Under Other Than Conditions
Discharge Certificate.  On 17 May 1983, the applicant was discharged
accordingly.  The DD Form 214 issued to him at the time, confirms the
applicant completed a total of 2 years, 7 months, and 10 days of creditable
active military service.  This form also shows the applicant was discharged
under the provisions of chapter 14-12b of Army Regulation 635-200 for
pattern of misconduct.

11.  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

12.  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.

13.  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 under other than honorable conditions
discharge should be upgraded to an honorable discharge.

2.  The evidence of record confirms the applicant’s unit commander notified
him of the contemplated separation action and that he waived his right to
consult with legal counsel.  It further shows that the applicant
acknowledged 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 two nonjudical punishments
and conviction by a civilian court for various offenses including failure
to go to his place of duty, breaking restrictions, driving while under the
influence, fleeing the scene of an accident, and auto theft.

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.  This misconduct also renders his service
unsatisfactory. Therefore, he is not entitled to either a general discharge
or 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 17 May 1983; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 16 May 1986.  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

_SK_      ___  _DRT       ____  _  DA     ___  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                 |AR20050006436                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1983/05/17                              |
|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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