RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 MAY 2006
      DOCKET NUMBER:   AR20050014597


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William Blakely               |     |Chairperson          |
|     |Mr. Robert Osborn                 |     |Member               |
|     |Mr. Jerome Pionk                  |     |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 discharge under other than honorable
conditions be upgraded to a discharge that will qualify him for veterans
benefits.

2.  The applicant states that his discharge should be upgraded so that he
can obtain benefits and should be upgraded based on his 16 years of service
to his country.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 28 April 1982.  The application submitted in this case is dated
27 September 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.  He enlisted in Richmond, Virginia, on 22 June 1972 for a period of 3
years and training as a communications center specialist.  He successfully
completed his training and was transferred to Korea on 24 March 1973, where
he served until 23 April 1974, when he was transferred to Fort Bragg, North
Carolina.

4.  On 1 July 1974, he was honorably discharged in the pay grade of E-4,
for the purpose of immediate reenlistment.  He reenlisted on 2 July 1974
for a period of 6 years and stabilization at Fort Bragg.  He was promoted
to the rank of sergeant on 12 February 1978.

5.  On 17 January 1979, he was convicted by a general court-martial of two
specifications of the wrongful possession of marijuana, one specification
of the wrongful transfer of marijuana, and one specification of the
wrongful sale of marijuana.  He was sentenced to be reduced to the pay
grade of E-1, to forfeit all pay and allowances and to be confined at hard
labor for 12 months.  He was initially transferred to the Disciplinary
Barracks at Fort Leavenworth, Kansas, and then to the Army Retraining
Brigade at Fort Riley, Kansas.

6.  On 9 July 1979, the United States Army Court of Military Review
determined that one of the specifications of the wrongful possession of
marijuana should be set aside and dismissed and that the remaining findings
of guilty be affirmed.  The court affirmed only so much of the sentence as
provided for forfeiture of all pay and allowances, reduction to the pay
grade of E-1 and confinement at hard labor for 10 months.

7.  He departed Fort Riley on 24 October 1979 and was transferred to Fort
Lewis, Washington.  He attained the rank of specialist four on 30 June 1980
and on 16 December 1980, was granted a waiver to reenlist for a period of 3
years.  He was promoted to the pay grade of E-5 on 2 October 1981.

8.  He was transferred to Germany on 9 September 1982, reenlisted on
15 August 1984 for a period of 6 years and was promoted to the pay grade of
E-6 on 1 November 1984.

9.  On 28 August 1986, nonjudicial punishment (NJP) was imposed against him
for being absent without leave (AWOL) from 14 July to 16 July 1986 (2
days).  His punishment consisted of a reduction to the pay grade of E-5
(suspended for 6 months) and restriction for 30 days.  The suspended
reduction was subsequently vacated and he was reduced to the pay grade of E-
5 effective 28 August 1986.

10.  The applicant again went AWOL from 21 July to 23 July (2 days);
however, the record is absent of any punishment imposed for that offense.

11.  On 25 November 1986, the applicant’s commander initiated action to bar
him from reenlistment.  He cited the applicant’s disciplinary record and
his failure to pay his just debts.  He cited 12 letters of indebtedness
from American and German National creditors, dishonored check
notifications, numerous letters of non-support of his dependents, traffic
tickets, Military Police Incidents reports and the applicant’s failure to
respond to repeated counseling sessions as the basis for his
recommendation.

12.  The applicant declined the opportunity to submit matters in his own
behalf and the appropriate authority (a major general) approved the bar to
reenlistment on 30 December 1986.

13.  On 12 February 1987, NJP was imposed against him for being AWOL from
5 January to 7 January 1987 and for damaging private property of a German
National.  His punishment consisted of a reduction to the pay grade of E-4,
restriction and extra duty.

14.  On 20 February 1987, the applicant’s commander notified him that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-200, chapter 14 for misconduct – commission of a
serious offense.  He cited the applicant’s frequent unexcused absences,
indebtedness and substandard daily duty performance as the basis for his
recommendation.  There were 50 enclosures, most of a derogatory nature,
included with the recommendation for separation.

15.  After consulting with counsel, the applicant waived his rights and
elected to submit a statement in his own behalf, whereas he asserted that
he should receive at least a general or honorable discharge based on his
military career and job performance record.  He also stated that he
understood that the separation action was being taken against him for
actions he had taken on his own and asserted that he would be able to
handle his personal problems better with an honorable discharge.

16.  The appropriate authority (a major general) approved the
recommendation for discharge on 20 April 1987 and directed that he be
reduced to the pay grade of E-1 and discharged under other than honorable
conditions.

17.  Accordingly, he was returned to Fort Dix, New Jersey, where he was
discharged under other than honorable conditions on 28 April 1987, under
the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct
– commission of a serious offense.  He had served 14 years, 2 months and
21 days of total active service and had 228 days of lost time due to AWOL
and confinement.

18.  There is no evidence in the available records to show that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitations.

19.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions is normally considered appropriate; however, a
general or honorable discharge may be furnished if deemed appropriate.

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.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service has been considered and it
simply does not rise to the level of a discharge under honorable
conditions.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 April 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 27 April 1990.  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

____WB_  ___RO __  ___JP___  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.




                                  ______William Blakely_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014597                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060525                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1987/04/28                              |
|DISCHARGE AUTHORITY     |AR635-200/CH14 . . . . .                |
|DISCHARGE REASON        |MISCONDUCT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |626/A60.00                              |
|1.144.6000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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