RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20050003707


      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. Phyllis M. Perkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 characterization of service under
honorable conditions be changed to honorable.

2.  The applicant states he has learned a valuable lesson since his
discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 February 1993, the date of his separation from active duty.
The application submitted in this case is dated 9 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 provisions 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 13 November 1991.  He was trained in, awarded, and
served in military occupational specialty (MOS) 94B10 (Food Service
Specialist).  The highest grade the applicant attained while serving on
active duty was private/pay grade E-2.

4.  On 22 June 1992, nonjudicial punishment was imposed against the
applicant for stealing a compact disc, the property of the Army and Air
Force Exchange Service. His punishment consisted of forfeiture of $183.00
per month for one month, extra duty for 14 days, and restriction to the
company area.

5.  On 10 July 1992, the applicant's unit commander recommended a bar to
reenlistment be imposed based on the applicant's nonjudicial punishment for
shoplifting and for being counseled on six separate occasions for writing
bad checks.  On 10 July 1992, the bar to reenlistment was approved.

6.  On 3 August 1992, the applicant's unit commander advised the applicant
that he intended to recommend his separation from the Army under the
provisions of paragraph 14-12c of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), for commission of a serious offense.
The unit commander also advised the applicant of his rights.

7.  On 3 August 1992, the applicant consulted with legal counsel and was
advised of the basis of the contemplated separation action, its effects and
of the rights available to him.  The applicant waived his rights to be
considered by an administrative separation board and did not make a
statement in his own behalf.

8.  On 4 August 1992, the captain in command of Company A, 14th Combat
Engineer Battalion [Fort Ord, California], initiated separation action
against the applicant under the provisions of chapter 14, of Army
Regulation 635-200 for commission of a serious offense.  He further
recommended a general discharge.

9.  On 6 August 1992, the lieutenant colonel in command of the 14th Combat
Engineer Battalion recommended discharge under the provisions of chapter 14
of Army Regulation 635-200 for commission of a serious offense.  He further
recommended that the applicant be separated with a general discharge
characterization.

10.  On 10 August 1992, the separation authority directed the applicant's
separation under the provisions of Army Regulation 635-200, chapter 14, for
misconduct and directed he receive a General Discharge Certificate.

11.  On 8 September 1992, the applicant was convicted by special court-
martial of carnal knowledge and housebreaking on 9 August 1992.  His
punishment consisted of reduction to private/pay grade E-1, confinement for
five months and forfeiture of $523.00 for six months.

12.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged on 1 February 1993 in accordance
with the provisions of Army Regulation 14, paragraph 14-12c.  The applicant
served 1 year, 2 months, and 19 days of active service.

13.  On 12 June 1996, the Army Discharge Review Board (ADRB) considered the
applicant's request to upgrade his discharge.  The ADRB unanimously
determined that the discharge was proper and equitable; however, the ADRB
voted to change the narrative reason on the applicant's DD Form 214 from
"Misconduct--commission of a serious offense" to "MISCONDUCT."

14.  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.

15.  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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the characterization of his service under
honorable conditions should be upgraded to honorable.

3.  Evidence of record confirms the applicant's unit commander notified him
of the contemplated separation and that he consulted legal counsel.  It
further shows that the applicant was advised of the basis of the
contemplated separation action and its possible effects.



4.  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.

5.  The applicant's record of service included one nonjudicial punishment
for shoplifting and one special court-martial for carnal knowledge and for
breaking and entering.  Records also show the applicant was also counseled
on six separate occasions for writing bad checks.

6.  Based on his 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.

7.  Records show the applicant should have discovered the alleged injustice
now under consideration on 12 June 1996, therefore, the time for the
applicant to file a request for correction of any error or injustice
expired on 11 June 1999.  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

_RTD____  _ENT___  _CLG___  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.




                                        _Curtis L. Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003707                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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