RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         31 August 2006
      DOCKET NUMBER:  AR20060002463


      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:

|     |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, in effect, that his under other than honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, he was not given the opportunity to
defend himself, and that his discharge case was unfairly expedited.  He
further states that due to a serious medial illness, he needs medical
benefits.

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 21 December 1984, the date of his discharge.  The
application submitted in this case is dated 6 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 9 November 1979.  He was trained in. awarded, and
served in military occupational specialty (MOS) 11B (Infantryman), and the
highest rank he attained while serving on active duty was sergeant.

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 three separate occasions for the offense(s) indicated:  16
January 1984, for being disrespectful toward a commissioned officer,
disobeying a lawful order, and being disrespectful to a noncommissioned
officer (NCO); 24 July 1984, for operating a motor vehicle while drunk; and
24 September 1984, for striking a private first class on the head with a
bottle.
5.  On 15 November 1984, the unit commander notified the applicant of his
intent to initiate action to separate him under the provisions of chapter
14, Army Regulation 635-200, for a pattern of misconduct, and the applicant
was advised of his rights.  The applicant declined the opportunity to
consult with legal counsel, and elected to waive his right to have his case
considered by a board of officers, his right to a personal appearance
before a board of officers, his right to counsel, and he elected not to
submit a statement in his own behalf.

6.  On 11 December 1984, the separation authority directed the applicant's
separation for misconduct, and that he receive an UOTHC discharge.  On
21 December 1984, the applicant was discharged accordingly.  The separation
document (DD Form 214) he was issued shows he completed a total of 5 years,
1 month, and 13 days of active military service.

7.  On 30 December 1985, the Army Discharge Review Board (ADRB), after
carefully reviewing the applicant's case and his entire military record,
found that his discharge was proper and equitable, and it voted to deny his
request that his discharge be upgraded.

8.  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.  Although an honorable discharge (HD) or GD may be
issued, an UOTHC discharge is normally appropriate for a Soldier discharged
under this chapter.

9.  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 he was never given the opportunity to
defend himself because his discharge was unfairly expedited was carefully
considered.  However, there is insufficient evidence to support this claim.
 The evidence of record confirms that after being given the opportunity, he
declined to consult with legal counsel; and that after being advised of his
right to have his case heard by a board of officers, he voluntarily waived
this right.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and the rights of the
applicant were fully protected throughout the separation process.  Further,
the applicant's discharge accurately reflects his overall record of
undistinguished service.

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 exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 30 December 1985.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 29 December 1988.  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

___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                 |AR20060002463                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/31                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1984/12/21                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C14                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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