RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         7 September 2006
      DOCKET NUMBER:  AR20060002033


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Jonathan K. Rost              |     |Member               |
|     |Mr. David K. Hassenritter         |     |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, in effect, that his under other than honorable
conditions (UOTHC) discharge be upgraded.

2.  The applicant states, in effect, he was just 13 days short of a 3-year
enlistment at the time of his discharge.  He claims that although he made
mistakes, he feels his service warranted a discharge above UOTHC.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 January 1986.  The application submitted in this case
is dated
4 February 2006.

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 he enlisted in the Regular Army and
entered active duty on 1 February 1983.  He was trained in, awarded, and
served in military occupational specialty (MOS) 12C (Bridge Crewman), and
the highest rank he attained while serving on active duty was specialist
four (SP4).

4.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  His disciplinary
history includes his acceptance of non-judicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following five separate occasions for the offense indicated:  4 April
1985, for being absent from formation; 28 May 1985, for failing to go to
his appointed place of duty at the prescribed time; 2 August 1985, for
being drunk on duty; 28 October 1985, for using marijuana; and 20 November
1985, for being drunk on duty.  He also received a Letter of Reprimand on
31 July 1985, for a positive urinalysis.

5.  The applicant's record is void of a separation packet containing the
special facts and circumstances surrounding the applicant's separation
processing.  The record does contain an Army Discharge Review Board (ADRB)
case report that documents the ADRB's review of the applicant's case.

6.  The ADRB case report outlines the following sequence of events:

      a.  12 August 1985, the applicant's unit commander notified the
applicant that separation action was being initiated to separate him under
the provisions of chapter 14, Army Regulation 635-200, by reason of
misconduct;

      b.  12 August 1985, the applicant declined legal counsel, waived his
right to have his case heard by an administrative separation board, and
elected not to submit a statement in his own behalf.

      c.  3 January 1986, the separation authority approved the applicant's
discharge and directed he receive an UOTHC discharge; and

      d.  13 January 1986, the applicant was discharged accordingly.

7.  The DD Form 214 issued to the applicant on 13 January 1986, the date of
his discharge, shows he was separated under the provisions of chapter 14,
Army Regulation 635-200, by reason of misconduct, after completing a total
of 2 years, 11 months, and 13 days of active military service.

8.  On 13 February 1987, the ADRB, after carefully considering the
applicant's overall record of service, and the issues he raised, denied the
applicant's petition to upgrade his discharge.

9.  Army Regulation 635-200 (Personnel Separations) 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, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  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.

10.  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’s contention that his overall record of service supports
an upgrade of his discharge was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The available evidence does not include a separation packet containing
the specific facts and circumstances surrounding the applicant’s final
discharge processing.  However, it does include a properly constituted DD
Form 214 that identifies the reason and characterization of the applicant’s
final discharge.  Therefore, Government regularity in the discharge process
is presumed.

3.  The applicant’s separation document confirms he was discharged under
the provisions of chapter 14, Army Regulation 635-200, by reason of
misconduct.  The ADRB case report on file confirms his separation
processing was accomplished in accordance with the applicable regulation.
Absent evidence to the contrary, it is presumed that all requirements of
law and regulation were met, and that the applicant's rights were fully
protected throughout the separation process.  Further, given his extensive
disciplinary history, the applicant's UOTHC discharge accurately reflects
his overall record of undistinguished service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 February 1987.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 12 February 1990.  However, he failed
to 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

__SAP __  ___JKR _  __DKH __  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.




                                  _____Susan A. Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002033                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/07                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1986/01/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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