RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 MAY 2005
      DOCKET NUMBER:  AR20040006091


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 separation date on his 1985
separation document be corrected to reflect a separation of 13 July 1985
vice
28 June 1985.

2.  The applicant states that the ETS (expiration term of service) date on
the separation document was 3 weeks early and as a result his total service
falls short of the 24 months of service required for Department of Veterans
Affairs benefits.  He states that he was not aware of the discrepancy until
he became ill and sought medical care.

3.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 June 1985.  The application submitted in this case is
dated
12 August 2004.

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.  Records available to the Board indicate that the applicant enlisted in
the Regular Army for a period of 3 years and entered active duty on 20 July
1983.  He was trained as a food service specialist and in December 1983 he
was assigned to a field service unit at Fort McClellan, Alabama.

4.  In June 1984 he was reassigned to an engineer unit at Fort McClellan.
Between July and September 1984 he was punished three times under Article
15 of the Uniform Code of Military Justice (UCMJ) for offenses which
included use of marijuana, failing to go to his place of duty, and being
disrespectful to a noncommissioned officer.  As a result of his UCMJ
actions he was reduced to pay grade E-1.

5.  In December 1984 he was confined by civilian authorities.  However, the
applicant’s records do not indicate the basis for the confinement.  He
returned to military control on 11 January 1985.

6.  In March 1985 he was punished under Article 15 of the UCMJ for being
absent from his place of duty and in April 1985 he was punished for being
disrespectful to a noncommissioned officer.

7.  In May 1985 the applicant acknowledged that his unit commander was
initiating actions to administratively discharge him under the provisions
of Army Regulation 635-200, chapter 13, for unsatisfactory performance.
The basis for his commander’s recommendation was the applicant’s
unsatisfactory duty performance and his inability to follow directions.

8.  The applicant consulted with legal counsel and waived his attendant
rights.  He was cleared mentally and physically for separation.

9.  The separation authority approved the commander’s recommendation that
the applicant be discharged, and on 28 June 1985 the applicant was
involuntarily separated for unsatisfactory performance with a general under
honorable conditions discharge.  He had 1 year, 10 months, and 13 days of
active Federal service.

10.  Army Regulation 635-200, Chapter 13, states that a Soldier may be
separated per this chapter when it is determined that he or she is
unqualified for further military service because of unsatisfactory
performance.  Unsatisfactory performance includes Soldiers who, in their
commander's judgment, will not develop sufficiently to participate
satisfactorily in further training and/or become a satisfactory Soldier;
the Soldier's retention would have an adverse impact on military
discipline, good order, and morale; it is likely that the Soldier will be a
disruptive influence in present or future duty assignments; it is likely
that the circumstances forming the basis for initiation of separation
proceedings will continue or recur; or the ability of the Soldier to
perform duties effectively in the future, including potential for
advancement or leadership, is unlikely.  The service of Soldiers separated
because of unsatisfactory performance will be characterized as honorable or
under honorable conditions as warranted by their military record.
Separation under this provision is an involuntary separation.





DISCUSSION AND CONCLUSIONS:

1.  The applicant was involuntarily separated as a result of unsatisfactory
performance and as such had no control over the actual date of his
separation that he may have had, had his separation been voluntary.  His
separation date as recorded on his separation date is correct and was not
“early” as the applicant suggests.

2.  While unfortunate, the fact that the applicant’s service may fall short
of that required to qualify for benefits from the Department of Veterans
Affairs is not evidence of any error in his separation date and does not
serve as a basis to change the date merely so that he can receive such
benefits.

3.  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 would
satisfy that requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 June 1985; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
27 June 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:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RW___  ___BE __  ___LD___  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.




                                  ____ Raymond Wagner_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040006091                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050519                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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