RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      21 March 2006
      DOCKET NUMBER:  AR20050006939


      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. Luis Almodova                 |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Robert D. Morig               |     |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 the narrative reason for
separation on his DD Form 214, Certificate of Release or Discharge from
Active Duty, be changed.

2.  The applicant states, in effect, that after having had surgery and
being placed on convalescent leave, he returned to this discharge.  He was
never told why he was being discharged.  He was never reprimanded for any
misconduct.  The evidence, he adds, will show that he was approved for
surgery and for leave for 30 days.

3.  The applicant adds that he has had hardships during past years.  His
life is heading towards a new light and it is impossible to function in
society with such a discharge narrative.  He feels it was wrongfully given.

4.  The applicant annotated his application to the Board to show that he
was submitting medical documentation and paperwork for leave; however, his
application was submitted and processed without these documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 22 March 1985.  The application submitted in this case is dated
5 August 2003, but was not received for processing until 10 May 2005.

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 limitation 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 US Army Reserve for 6 years in the pay
grade
E-3, on 19 August 1983.  On 29 November 1983, the applicant enlisted in the
Regular Army for a period of 3 years for an initial assignment to the 82nd
Airborne Division Band for duty in the military occupational specialty
(MOS) 02L, Saxophone Player.  The applicant successfully completed basic
combat training at Fort Jackson, South Carolina.  He was reassigned to
Little Creek, Virginia, to undergo training for award of a bandsman's MOS.

4.  On 14 May 1984, the applicant received non-judicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ)
for being on post as a sentinel as telephone watch and was found drunk upon
his post on 6 May 1984.  The imposed punishment was a reduction to pay
grade E-2 (suspended for 2 months) and a forfeiture of 7-day's pay per
month for one month.  The applicant did not appeal the punishment.

5.  On 25 June 1984, the applicant departed from the US Naval Amphibious
Base, Little Creek, Virginia, and his unit, the US Army Element, School of
Music, and remained absent without leave until 27 June 1984.  For this
absence, the commander did not impose any new punishment under the UCMJ.
Instead, he vacated the suspension of reduction to Private, E-2, that had
been imposed on the applicant in the Article 15 that was administered on 14
May 1984.

6.  On 5 July 1984, the applicant was released from training at the US Army
Element, School of Music, as a Saxophone Player, and was reassigned to the
US Army Infantry Training Center, Fort Benning, Georgia, for training as a
light weapons infantryman, in the MOS 11B.

7.  The applicant successfully completed advanced individual training at
Fort Benning, Georgia.  On completion of his advanced training, he was
awarded the military occupational specialty, 11B.

8.  On 3 October 1984, the applicant was reassigned to Fort Irwin,
California.  He was assigned to Company C, 6th Battalion, 31st Infantry.

9.  The applicant was referred for a mental status evaluation, in
preparation for submission of a discharge under the provision of Army
Regulation (AR) 635-200, Chapter 14.  The mental status evaluation was
conducted on 20 November 1984. The applicant's behavior was found to be
normal.  He was found to be fully alert and fully oriented.  His mood or
effect was unremarkable, his thinking process was clear, and his thought
content was normal.  The applicant's memory was good.  The evaluating
officer opined that the applicant had the mental capacity to understand and
participate in separation proceedings.

10.  The applicant was provided a NTC Form 1-36, Individual Performance
Evaluation Counseling Statement, dated 30 October 1984, for his personal
conduct and responsibility.  The applicant was counseled about a door to
his room that was broken when he got into a fight with another Soldier the
previous night while the applicant was under the influence of alcohol and
when he made racial remarks towards the other Soldier.

11.  The applicant was provided an Individual Performance Evaluation
Counseling Statement, dated 1 November 1984, for his personal performance,
conduct, training, and responsibility over the previous thirty days.  The
applicant was told the counselor felt his performance during on-duty time
was good.  There were times he worked hard and had good work habits.  There
were times when he asked to work with other people because he couldn't get
along with those he was assigned to work with.  He was advised his off duty
behavior was in need of improvement.  The applicant was warned that unless
he improved his behavior, he was going to jail and could be dropped from
the operational forces.  The recent incidents of breaking his room door,
fighting with another Soldier, and drinking were cited as examples of his
poor behavior.  The applicant was provided options to steer him away from
drinking.

12.  The applicant was provided an Individual Performance Evaluation
Counseling Statement, dated 6 November 1984, for his personal conduct.
The applicant was counseled about having been arrested for public
drunkenness twice in one night.  The counselor opined that the applicant
needed to be placed in the drug and alcohol program.

13.  The applicant was provided an Individual Performance Evaluation
Counseling Statement, dated 8 November 1984, for his personal conduct,
responsibility, communications, and decision-making ability.  The
applicant was counseled about having failed to report to the motor pool
promptly after he received instructions to do so.  The applicant alleged
to have had to use the latrine.  Since none was available to him, he went
to the recreation center to use the facilities.  The applicant did not
show up at the motor pool for approximately 1 hour and 10 minutes after
he received his instructions to report to the motor pool.

14.  On 21 February 1985, the applicant received nonjudicial punishment
under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ) for being drunk on duty at a company formation, using
provoking words towards a female Soldier, failing to obey the lawful
order of a military police, and by wrongfully violating a lawful general
regulation by sexually harassing a female Soldier.  All these
events/violations took place on 19 February 1985.  The imposed punishment
was a reduction to the rank and pay grade Private, E-1.  The applicant
did not appeal the punishment imposed.

15.  The discharge "packet" that was prepared for the applicant's
separation from the Army is not available in his service personnel records;
therefore, all the facts and circumstances concerning events that led to
his discharge from the Army are not fully known.

16.  The applicant was discharged in the rank and pay grade of Private, E-
1, on 22 March 1985, under the provisions of AR 635-200, Chapter 14,
paragraph 14-12b.  The Separation Program Designator Code (SPD) JKM
(Misconduct-Pattern of Misconduct) was applied to the applicant's DD Form
214.  The applicant's service was characterized as, "Under Honorable
Conditions (General)."

17.  On the date of his discharge, the applicant had completed 1 year, 3
months, and 24 days, total active military service.

18.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's DD Form 214, shows the applicant
was awarded the Army Service Ribbon and the Marksman Marksmanship
Qualification Badge, with Automatic Rifle [M-16 Rifle] Bar.  The record
contains no documentary evidence of acts of valor or achievement which
warrant special recognition.

19.  A Standard Form (SF) 88, Report of Medical Examination, completed in
part by the applicant, during his separation physical examination, on 20
November 1984, shows no entries to indicate that he had undergone a recent
surgical procedure.  Based on this medical examination, the applicant was
qualified for separation.

20.  A SF 93, Report of Medical History, completed in part by the
applicant, during his separation physical examination, on 20 November
1984, also shows no entries to indicate that the applicant had undergone
recent surgical procedure(s).  To questions: 18 ("Have you had, or have
you been advised to have, any operations?"), 19 ("Have you ever been a
patient in any type of hospital?"), and 21 ("Have you consulted or been
treated by clinics, physicians, healers, or other practitioners within the
past 5 years for other than minor illness?"), the applicant replied, "No."


21.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

22.  AR 635-200 sets forth the basic authority for separating enlisted
personnel.  Chapter 14 establishes policy and procedures for separating
personnel for misconduct because of minor disciplinary infractions, a
pattern of misconduct, commission of a serious offense, conviction by civil
authorities, desertion, and absence without leave.

23.  AR 635-5-1, in effect at that time, prescribed the specific
authorities (regulatory, statutory, or other directives), the reasons for
the separation of members from active military service, and the separation
codes to be used for these stated reasons.  The regulation shows that the
separation code “JKM”, as shown on the applicant’s DD Form 214, specifies
the narrative reason for discharge as, “Misconduct-Pattern of Misconduct,”
and that the authority for discharge under this separation code is AR 635-
200, Chapter 14.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record is void of all the facts and circumstances
concerning the events that led to his discharge from the Army.  The
applicant’s record contains what appears to be a properly constituted DD
Form 214 which shows the authority for discharge to be AR 635-200, Chapter
14, and the applied separation code of, "JKM."  In this case, in the
absence of all documents related to the applicant's separation from the
Army, Government regularity in the discharge process is presumed.

2.  The applicant's assertion that he had surgery and that he was placed
on convalescent leave cannot be corroborated with the available evidence.
A review of available medical documents on file in the applicant's service
personnel records failed to show a reference to the applicant having
received surgery just prior to his discharge as he alleges.  Documents the
applicant stated he was forwarding with his application for the Board's
consideration were not received for review.

3.  The applicant stated that when he returned from leave, he returned to
this discharge.  He alleges that he was never told why he was being
discharged; however, the evidence shows that he received non-judicial
punishment under Article 15 of the UCMJ on three occasions, including the
commander's action to vacate the suspended pay grade reduction that had
earlier been imposed on the applicant, and he was counseled about his
personal conduct and other issues on five known occasions.

4.  The applicant's allegation that he was never reprimanded for any
misconduct is not supported by the evidence.  As shown in the paragraph
above, the applicant received non-judicial punishment under the UCMJ twice
and on one occasion, rather that administer new non-judicial punishment,
the commander opted to vacate a suspended reduction that had been imposed
upon the applicant.  The evidence shows that the applicant enlisted in the
Army in the pay grade E-3 and was separated in the pay grade of E-1.
Reductions in pay grade were imposed due to the applicant's pattern of
misconduct and for his violations of regulations.

5.  The applicant’s entire record of service was reviewed.  The record
contains no documentary evidence of acts of valor or achievement which
would warrant special recognition and a change to the narrative reason for
his discharge.

6.  In order to justify correction of a military record, the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that the
reason for his discharge was incorrect and therefore in need of correction.

7.  In view of the foregoing, there is no basis for granting the
applicant's request for a change to the narrative reason for his discharge
from the Army.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 March 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 21 March 1988.  However, 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:

___JS___  _YM_____  ___RDM  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




                                  _____John Slone_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006939                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060321                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.   191                |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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