RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 October 2006
      DOCKET NUMBER:  AR20060003564


      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:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Thomas Ray                    |     |Member               |
|     |Ms. Sherry Stone                  |     |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 general under honorable conditions
discharge be upgraded to honorable and that his narrative reason be
changed.

2.  The applicant states he was told that his discharge could be changed to
honorable after 10 years.  He states that he is very active with the
American Legion and the Sons of the American Legion.  He is embarrassed
with his discharge status and his actions as a Soldier.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 March 1985.  The application submitted in this case is dated
1 February 2006, but was not received until 6 March 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 19 October 1982 for a
period of three years.  He completed the required training and was awarded
military occupational specialty 12B (Combat Engineer).  He was promoted to
specialist four on 1 May 1984.

4.  The applicant tested positive for marijuana on 27 April 1984.

5.  On 8 June 1984, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for knowingly and
wrongfully using some amount of marijuana between 24 March 1984 and 3 April
1984.  His punishment consisted of a reduction to private first class, a
forfeiture of $150.00 (suspended until 1 October 1984), and extra duty for
14 days.


6.  On 10 September 1984 and 20 September 1984, the applicant received
adverse counseling statements for being absent from physical training and
for being absent from his place of duty.

7.  On 29 November 1984, the applicant accepted nonjudicial punishment
under Article 15, UCMJ for wrongfully buying stolen property, of a value of
about $23.16.  His punishment consisted of a reduction to private E-2
(suspended until 1 March 1985); a forfeiture of $150.00 pay per month for 2
months; restriction to place of duty, dining facility, billets area, and
place of worship for 30 days; and extra duty for 30 days.

8.  On 19 December 1984 and 26 February 1985, the applicant was counseled
regarding pending separation action under chapter 14 for patterns of
misconduct.

9.  On 26 February 1985, the unit commander notified the applicant of
separation action under the provisions of Army Regulation 635-200,
paragraph 14-12(b) for misconduct - pattern of misconduct.  He was advised
of his rights.

10.  The applicant acknowledged notification of separation action,
consulted with legal counsel, requested personal appearance and
consideration of his case by a board of officers if discharge was to be
accomplished by the general court-martial convening authority, and he
elected to submit statements in his own behalf.  He submitted promotion
orders, Certificates of Achievement, Certificates of Completion, and
Certificates of Training as his statements.

11.  The unit commander recommended the applicant be discharged under Army
Regulation 635-200, paragraph 14-12b for pattern of misconduct.  The unit
commander stated the applicant had a pattern of misconduct consisting of
wrongful use of marijuana and knowingly receiving stolen property.  He also
stated that counseling and nonjudicial punishment had been ineffective.

12.  On 15 March 1985, the appropriate separation authority waived
rehabilitative transfer and directed that the applicant be discharged under
the provisions of Army Regulation 635-200, chapter 14-12b for pattern of
misconduct with issuance of a General Discharge Certificate.

13.  The applicant was discharged from active duty on 25 March 1985 under
the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct
- pattern of misconduct.  He completed 2 years, 5 months, and 7 days of
active military service.  His DD Form 214 shows he was given a Separation
Program Designator (SPD) code of "JKM" (Misconduct – Pattern of
Misconduct).

14.  There is no evidence of record which shows the applicant applied to
the Army Discharge Review Board within its 15-year statute of limitations.

15.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed 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 would be taken to separate a member for misconduct
when it was clearly established that rehabilitation was impracticable or
was unlikely to succeed.  A discharge under other than honorable conditions
was normally appropriate for a Soldier discharged under this chapter.
However, the separation authority may direct a general discharge if such is
merited by the Soldier’s overall record.  Only a general court-martial
convening authority may approve an honorable discharge or delegate approval
authority for an honorable discharge under this provision of regulation.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes)
prescribed the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the SPD codes to be used for these stated reasons.  The
regulation in effect at the time showed that the SPD code “JKM” as shown on
the applicant’s DD Form 214 specified the narrative reason for separation
as involuntary release or transfer
for “Misconduct – Pattern of Misconduct” and that the authority for
separation under this separation program designator was “AR 635-200,
Chapter 14.”

17.  Army Regulation 635-200, paragraph 3-7a, 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).

18.  The U.S. Army does not have, nor has it ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper or inequitable.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service records show he received two Article 15s, one
for wrongfully using some amount of marijuana and one for wrongfully buying
stolen property, and he received adverse counseling statements for other
offenses.

2.  Considering the nature of the applicant's offenses, it appears the
chain of command determined that separation under the provisions of Army
Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct
was appropriate.

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.  After review of the evidence of this case, it is determined that the
applicant has not presented sufficient evidence which warrants changing his
general discharge to an honorable discharge.

5.  Although the applicant contends that he was told that his discharge
would be upgraded to honorable after 10 years, there is no policy or
regulation within the Army which allows automatic upgrading of discharges.

6.  The applicant has failed to show through the evidence submitted or the
evidence of record that the narrative reason for separation issued to him
was in error or unjust.  Therefore, there is no basis for granting his
request.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 March 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 March 1988.  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

KW______  TR______  SS______  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.




                                  Kenneth Wright________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003564                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061003                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19850325                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-12b              |
|DISCHARGE REASON        |Misconduct - pattern of misconduct      |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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