RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060002132


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |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 correction of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) to show his pay grade as E-4 (P).
He requests, in effect, that his general discharge be upgraded to an
honorable discharge.  He also requests that his DD Form 214 be corrected to
show he completed General Educational Development (GED) Tests.

2.  The applicant states, in effect, that he received his GED.  He states
he did not reenlist.  He also states that his commanding officer was unfair
and had made a mistake.

3.  The applicant provides a copy of his DD Form 214 and his Kansas State
High School Equivalency diploma.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred

on 12 October 1984.  The application submitted in this case is dated 17
January 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 enlisted in the Regular Army on 13 April 1981 for a
period of four years in pay grade E-1.  His DD Form 1966 (Application for
Enlistment - Armed Forces of the United States) shows he had completed 10
years of education at the time of his enlistment.  He completed basic
training at Fort Leonard Wood, Missouri and was reassigned to Fort Sam
Houston, Texas for advanced individual training (AIT).  At the completion
of AIT, he was awarded military occupational specialty 71G (Patient
Administration Specialist).

4.  The applicant was assigned to Germany in September 1981.

5.  The applicant was promoted to SP4, E-4 on 13 July 1983.

6.  He departed Germany in September 1983 and was reassigned to
Fort Leavenworth, Kansas.

7.  A DA Form 3975 (Military Police Report), dated 4 January 1984, in the
applicant’s personnel records shows he was investigated for drunk and
disorderly conduct and for assault (unfounded) on 31 August 1983.

8.  On 12 January 1984, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being present in
female billets after 1100 hours.  His punishment consisted of 7 days
restriction.

9.  The applicant received adverse counseling on various occasions between
April 1984 and June 1984 for his attitude towards his work and his
disrespect toward his civilian co-workers; for needing a haircut; for
improperly handling his Blood Alcohol Test paperwork by failing to turn it
in to the lab and for failure to turn in linen; and for being disrespectful
toward a noncommissioned officer.

10.  On 21 June 1984, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for being disrespectful in language toward his superior
noncommissioned officer.  His punishment consisted of a reduction to pay
grade E-3, restriction for 14 days, and extra duty for 14 days.

11.  The applicant’s personnel records contain a DA Form 4187 (Personnel
Action), dated 3 August 1984, which indicates he was reduced to private
first class (PFC) on 16 (sic) June 1984.

12.  The applicant’s diploma from the Department of Education, Kansas State
High School Equivalency shows he successfully completed the GED Tests on
27 July 1984.

13.  On 27 August 1984, the applicant’s unit commander notified him of
pending separation action under the provisions of Army Regulation 635-200,
paragraph 14-12b for pattern of misconduct and advised him of his rights.
The applicant acknowledged notification of separation action, consulted
with legal counsel, and submitted statements in his own behalf.  The
applicant stated, in effect, that the proposed separation action under
chapter 14 for misconduct was extreme.  He stated the impact of separation
under chapter 14 far outweighs the seriousness of any of the incidents he
had been involved since he had been in the military.  He stated his
personnel file does not reflect a pattern of misconduct. He explained in
detail a few isolated incidents regarding his misconduct, to include his
Article 15s, adverse counseling statements, and a citation from the
military police for driving under the influence and for driving without a
valid driver’s license.
14.  On 10 October 1984, the separation authority approved the applicant's
discharge under the provisions of Army Regulation 635-200, paragraph 14-12b
for misconduct – pattern of misconduct with issuance of a General Discharge
Certificate.

15.  Headquarters, U.S. Army Combined Arms Center and Fort Leavenworth
Orders 196-9, dated 11 October 1984, discharged the applicant from active
duty on 12 October 1984 in the rank of PFC.  His DD Form 214 shows he was
discharged from active duty with a general under honorable conditions
discharge.

16.  His DD Form 214 shows his rank as PFC in item 4a (Grade, Rate or Rank)
and his pay grade as E-3 in item 4b (Pay Grade).  The effective date of pay
grade is shown as 21 June 1984.

17.  His DD Form 214 shows the entry "NO" in item 16 (High School Graduate
or Equivalent).

18.  On 15 May 1996, the Army Discharge Review Board (ADRB), by unanimous
vote, denied the applicant’s request for an upgrade of his discharge.

19.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier's
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

20.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents prepared for Soldiers upon retirement, discharge, or release from
active military service or control of the Army.  It establishes
standardized policy for the preparation of the DD Form 214.  In pertinent
part it states that the DD Form 214 is a synopsis of the Soldier's most
recent period of continuous active duty.  It provides a brief, clear-cut
record of active Army service at the time of release from active duty,
retirement or discharge.

21.  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 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 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 was promoted to SP4, E-4 on 13 July 1983.  He was reduced
to pay grade E-3 with an effective date of 21 June 1984 as a result of
nonjudicial punishment under Article 15.

2.  Orders show the applicant was discharged from active duty on 12 October
1984 in the rank of PFC, E-3.  His DD Form 214 is meant to reflect his
status as of his last day of active duty on 12 October 1984.  As of that
date, he was a PFC, E-3.  Therefore, his DD Form 214 accurately reflects
his rank and pay grade as PFC, E-3.

3.  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.

4.  The applicant’s service records show he received two Article 15s,
several adverse counseling statements, and a Military Police Report
indicating he was investigated for drunk and disorderly conduct and assault
(the violation of assault was unfounded).

5.  A discharge under other than honorable conditions was normally
appropriate for a Soldier discharged under chapter 14 for misconduct.  It
appears the separation authority determined that the applicant's overall
service did not meet the standards of acceptable conduct and performance of
duty to warrant an honorable discharge, but it was sufficient to warrant a
general discharge.

6.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge issued to him was in error or
unjust.

7.  The evidence of record shows the applicant successfully completed GED
Tests in July 1984 prior to his discharge.  However, his DD Form 214
incorrectly reflects that he did not complete high school or equivalent.
Therefore, it would be appropriate to amend his DD Form 214 to reflect the
entry “YES” in item 16.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 May 1996, the date of ADRB review;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 14 May 1999.  The applicant did not file
within the 3-year statute of limitations; however, based on the available
evidence, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

LS______  JM______  JP______  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by amending item 16 on his
DD Form 214 to show the entry “YES.”

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
showing his pay grade as
E-4 and upgrading his general discharge to an honorable discharge.




                            Linda Simmons_________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002132                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19841012                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 14-12b               |
|DISCHARGE REASON        |Misconduct-pattern of misconduct        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |110.0000                                |
|2.                      |100.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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