RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 March 2007
      DOCKET NUMBER:  AR20060012760


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Larry W. Racster              |     |Member               |
|     |Mr. Rodney E. Barber              |     |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, a change to the narrative reason for
separation and Separation Program Designator (SPD) code of his last
discharge.

2.  The applicant states, in effect, he is requesting a change to his SPD
and Reentry codes so that he can reenlist.  He states that when he asks a
local recruiter about this issue, he was told this Board was the only one
who could change it. He claims he was discharged for offenses that occurred
off duty and it has been over 15 years since he was discharged.  He states
that he has not had a drink in over seven years and he has obtained an
Associate's Degree and Bachelor's Degree and is currently three courses shy
of a Master's Degree.  He claims he wishes to reenlist and serve.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 11 May 1988, the date of his separation.  The application
submitted in this case is dated 29 August 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 25 November 1980.  He was trained in, awarded, and
served in
military occupational specialty (MOS) 19D (Cavalry Scout), and the highest
rank he attained while serving on active duty was sergeant (SGT).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he
completed two overseas tours of duty in Korea, and that he earned the
following awards:  Army Achievement Medal 1st Oak Leaf Cluster; Army Good
Conduct Medal (1st Award); Army Service Ribbon; Overseas Service Ribbon
(2); Noncommissioned Officer Professional Development Ribbon; Parachutist
Badge; and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

5.  The applicant's disciplinary history shows two separate civil
convictions for driving while impaired (DWI) on 15 January and 29 February
1989.

6.  On 3 March 1988, the unit commander notified the applicant he was
initiating action to separate him under the provisions of paragraph 14-12c,
Army Regulation 635-200, by reason of misconduct (commission of a serious
offense). The unit commander cited the two civil convictions for DWI as the
basis for taking the action.

7.  The applicant consulted with legal counsel and was advised of the basis
for the contemplated separation action, and of the rights available to him.
 Subsequent to this counseling, the applicant requested consideration of
his case by a board of officers, personal appearance before a board of
officers, and consulting counsel.

8.  On 24 March 1988, an administrative separation board convened to
consider the applicant's case.  The applicant and his counsel were present
at the board hearing.  After hearing all testimony and considering all
evidence, the board of officers found the applicant committed a serious
offense and it recommended the applicant be separated under the provisions
of chapter 14, Army Regulation 635-200, for commission of a serious
offense, and that he receive a general, under honorable conditions
discharge (GD).

9.  Subsequent to the completion of the board of officers hearing, the
applicant's defense counsel submitted a memorandum to the separation
authority requesting the applicant's separation be suspended based on the
applicant's overall record of service and his acknowledgment of the
mistakes he made and his desire for rehabilitation.  Counsel also indicated
that since the Government had introduced limited use evidence at the
applicant's hearing, an honorable discharge was mandated by regulation, and
he recommended that if separation were accomplished, the applicant receive
an honorable discharge.

10.  On 9 May 1988, the separation authority approved the applicant's
discharge under the provisions of paragraph 14-12c, Army Regulation 635-
200, and that he receive an honorable discharge.  On 11 May 1988, the
applicant was discharged accordingly.
11.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities
(regulatory or directive), reasons for separating Soldiers from active
duty, and the SPD codes to be entered on the DD Form 214.  The version of
the regulation in effect at the time of the applicant's discharge stated,
in pertinent part, that the SPD code of JKQ was the appropriate code to
assign to Soldiers separated under the provisions of paragraph 14-12c, Army
Regulation 635-200, by reason of commission of a serious offense.

12.  Army Regulation 601-210 covers eligibility criteria, policies, and
procedures for enlistment and processing into the Regular Army (RA) and the
United States Army Reserve (USAR).  Chapter 4 provides waiver and non-
waiver criteria.  Paragraph 4-25 identifies non-waiver disqualifying
separations and discharges.  Included in this list is any person with prior
service who was last discharged from any component of the Armed Forces for
drug or alcohol abuse.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the narrative reason for his separation
and SPD code be changed in order to allow him to reenlist based on his post
service conduct was carefully considered.  However, while his post service
accomplishments are noteworthy, this factor alone is not sufficiently
mitigating to support granting the requested relief.

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.

3.  By regulation, any person with prior service who was last discharged
for drug or alcohol abuse may not obtain a waiver to reenlist.  In this
case, the evidence of record confirms that based on the applicant's abuse
of alcohol, as evidenced by two separate civil convictions for DWI, and he
was appropriately separated for the commission of a serious offense.

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 should have discovered the alleged error or
injustice now under consideration on 11 May 1988, the date of his
discharge.  Therefore, the time for him to file a request for correction of
any error or injustice expired on 10 May 1991.  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

___MKP _  __LWR__  __REB __  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.




                                  ____Margaret K. Patterson____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012760                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/03/15                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1988/05/11                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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