RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 September 2006
      DOCKET NUMBER:  AR20060001967


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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 for misconduct be changed to
physical disability separation or retirement.

2.  The applicant states that the provisions of Army regulation 635-200,
chapter 14 for misconduct were improperly applied to him and that he should
have been separated for physical disability as evidenced by his Department
of Veterans Affairs (VA) records.

3.  The applicant provides approximately 250-300 pages of VA medical and
claims records.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no request, evidence or argument beyond that submitted
with the application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 24 August 1998.  The application submitted in this case
is dated  29 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.  On 24 August 1998, the applicant was separated with a general discharge
under the provisions of Army Regulation 635-200, chapter 14 for a pattern
misconduct.

4.  On 12 January 2000 this Board denied the applicant’s request for
reinstatement with back pay and allowance based on the contention that the
governing regulation had been wrongly applied in his case.

5.  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.  Paragraph 14-
12b authorizes separation for a pattern of misconduct consisting solely of
minor military disciplinary infractions; discreditable involvement with
civil or military authorities; discreditable conduct or conduct prejudicial
to good order and discipline, including conduct violating the accepted
standards of personal conduct found in the UCMJ, Army regulations, the
civil law, and time-honored customs and traditions of the Army.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.

6.  On 3 December 2005 the Army Discharge Review Board voted to upgrade the
applicant’s discharge to honorable based upon post service considerations.
The reason for the discharge remained unchanged.

7.  Army Regulation 635-40, paragraph 4-2, precludes physical disability
processing or continuing disability processing of an enlisted member who is
being processed for administrative separation under any regulatory
provision which authorizes separation under other than honorable
conditions.  The only exceptions are when the officer exercising general
court-martial jurisdiction (who may not delegate this authority) finds that
the disability was the cause or a substantial contributing cause of the
pertinent misconduct or that other circumstances warrant disability
processing.

DISCUSSION AND CONCLUSIONS:

1.  Absent a finding by the general court-martial convening authority that
physical disability was the cause or a major contributing factor of the
misconduct that led to the separation processing, disability processing is
excluded.

2.  Because of his misconduct the applicant was excluded from disability
processing.

3.    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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 August 1998; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 23 August 2001.  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

___LDS _  __AM ___  __PMS__  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.




                                  _     _Linda D. Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001967                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060928                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19980824                                |
|DISCHARGE AUTHORITY     |AR 635-200. . . . .                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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