RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        31 August 2006
      DOCKET NUMBER:  AR20060000266


      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. Karl L. Briales               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 condition be
changed to honorable.

2.  The applicant states that the Cuyahoga County (Ohio) Veterans Service
Office verified that he was discharged under honorable conditions; however,
his DD Form 214 (Certificate of Release or Discharge from Active Duty)
indicates he was discharged under other than honorable conditions.  The
applicant continues that he would like his records corrected due to an
error by the government and the hard times he has been going through
because of that error. He concludes that he left the service on 21
September 1981 due to early release.

3.  The applicant provides a copy of his DD Form 214 and a copy of a
Memorandum from the Cleveland (Ohio) Veterans Service Commission verifying
his periods of service and his character of service at time of discharge as
under honorable conditions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 10 September 1981, the date of his discharge from the
Army.  The application submitted in this case is dated 21 December 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 for a
period of three years on 2 March 1979.  He was trained in, awarded, and
served in military occupational specialty 91B10 (Medical Specialist).  He
was discharged under other than honorable conditions on 10 September 1981. 





4.  The applicant's records reveal a disciplinary history that includes
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on two separate
occasions, and two courts-martial convictions.

5.  On 6 December 1979, the applicant accepted NJP for wrongfully striking
a Soldier with his fist.  His punishment consisted of forfeiture of $116.00
per month for 1 month, 14 days of extra duty, and 14 days restriction. 

6.  On 29 December 1980, the applicant was convicted by a Summary Court-
Martial for being disrespectful toward his superior officer.  His
punishment consisted of confinement at hard labor for 30 days, forfeiture
of 2/3 pay for 1 month, and reduction to private/E-1. 

7.  On 28 May 1981, the applicant accepted NJP for being disrespectful
toward his superior noncommissioned officer.  His punishment consisted of 7
days' extra duty.

8.  On 15 June 1981, the applicant was convicted by a Summary Court-Martial
for being disrespectful toward his superior noncommissioned officer.  His
punishment consisted of confinement at hard labor for 30 days.

9.  On 28 June 1981, the unit commander initiated action to separate the
applicant under the provisions of chapter 14 of Army Regulation 635-200
(Enlisted Personnel Separations) by reason of patterns of misconduct. 

10.  On 3 August 1981, the applicant voluntarily waived consideration of
his case by an administration separation board, and waived personal
appearance and representation before the board.

11.  On 24 August 1981, the separating authority waived rehabilitation
transfer and directed the applicant be discharged with a under other than
honorable conditions discharge.

12.  On 10 September 1981, the applicant was discharged by reason of
patterns of misconduct after completing 2 years, 5 months, and 16 days of
active military service.

13.  On 6 June 1984, the Army Discharge Review Board denied the applicant's
request for an upgrade of his discharge.


14.  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.  Specific
categories include minor disciplinary infractions and patterns of
misconduct such as frequent incidents of a discreditable nature with civil
or military authorities, commission of a serious offense, and desertion or
absence 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 appropriate for a soldier discharged under
this chapter.

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 his DD Form 214 should be corrected to show
he was honorably discharged.  He contends his DD Form 214 is incorrect due
to an error by the government. 

2.  The applicant's record shows he received NJP on two separate occasions
for striking another Soldier with his fist and being disrespectful toward
his superior noncommissioned officers.  He was also convicted by Summary
Courts-Martial on two separate occasions, receiving confinement at hard
labor on both occasions for being disrespectful toward his superior officer
and superior noncommissioned officer. 
3.  The record shows the applicant was issued an under other than honorable
conditions discharge under the provisions of chapter 14, AR 635-200 by
reason of misconduct.  His discharge was never honorable and it appears
that the Cuyahoga Veterans Service Commission received erroneous
information in stating otherwise.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  There is no
indication of procedural errors which would tend to jeopardize his rights.

5.  The evidence of record shows that the command attempted to assist the
applicant in performing and conducting himself to Army standards by
providing imposition of nonjudicial punishment.  The applicant failed to
respond appropriately to these efforts.

6.  The character of the applicant's discharge is commensurate with the
applicant's overall record of military service.  As such, the quality of
his service was not consistent with the Army's standard for acceptable
personal conduct and performance of duty by military personnel.

7.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant did not submit any evidence that would
satisfy this requirement.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 6 June 1984.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 5 June 87.  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

__wdp___  __jcr___  __ksj___  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 D. Powers
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000266                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060831                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19810910                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 14                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.6400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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