RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           27 January 2005
      DOCKET NUMBER:  AR20040000650


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Ms. Eloise C. Prendergast         |     |Member               |
|     |Ms. Brenda K. Koch                |     |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 all derogatory information
related to his separation for unsatisfactory performance be removed from
his record and that he be granted an honorable discharge.

2.  The applicant states, in effect, that his performance during his time
in service was honorable and well above satisfactory.  Unfortunately, at
the time of his release from active duty he was forced to accept his
discharge in order to be with his ill wife.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 1 April 1983.  The application submitted in this case is
dated 12 April 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 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’s record shows that he enlisted in the Regular Army and
entered active duty on 18 May 1982.  His enlistment contract shows that he
enlisted for a training of choice option, for training in military
occupational specialty (MOS) 11F (Infantry).  No assignment option
subsequent to training was included in his contract agreements.

4.  The applicant’s record documents no acts of valor, significant
achievement or service warranting special recognition.  It does include a
disciplinary history that includes the applicant’s acceptance of
nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on
9 March 1983, for disobeying a lawful order from his first sergeant.

5.  The record also shows that the applicant was formally counseled by
members of his chain of command on six separate occasions for a myriad of
performance and conduct issues between 16 January and 2 March 1983.
6.  On 9 March 1983, the unit commander prepared a Bar to Reenlistment
Certificate on the applicant.  He based this action on the applicant’s
disciplinary history, which included NJP and six formal counseling sessions
for a myriad of performance and conduct related infractions.

7.  On 14 March 1983, the Bar to Reenlistment pertaining to the applicant
was approved by the appropriate authority.

8.  On 18 March 1983, the unit commander notified the applicant that
separation action under the provisions of chapter 13, Army Regulation 635-
200, for unsatisfactory performance was being initiated on him based on his
continued display of immaturity and lack of motivation.  The applicant
consulted with legal counsel and was advised of the basis for the
contemplated separation action and its effects, the rights available to him
and the effect of a waiver of those rights.

9.  On 21 March 1983, the applicant’s battalion commander recommended the
applicant’s separation for unsatisfactory performance.  He further
recommended the applicant receive an honorable discharge and that he be
transferred to the Individual Ready Reserve.

10.  On 1 April 1983, the applicant was honorably discharged under the
provisions of chapter 13, Army Regulation 635-200, by reason of
unsatisfactory performance.  The separation document (DD Form 214) he was
issued at the time confirms he completed a total of 10 months and 14 days
of active military service.

11.  There is no indication that the applicant applied to the Army
Discharge Review Board for a change to his discharge within the 15-year
statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was promised an assignment at Fort
Ord, California was carefully considered.  However, his enlistment contract
confirms he enlisted for the training of choice option and was not
guaranteed a unit of assignment in connection with his enlistment.

2.  Further, the applicant’s claim that he was forced to accept the
discharge because of his wife’s illness was also carefully considered.
However, this factor is not sufficiently mitigating to warrant the
requested relief given the condition existed prior to his entry on active
duty.

3.  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.

4.  The applicant also now requests his discharge be changed to honorable.
However, the record shows his service was characterized as honorable at the
time of his separation; thus, no correction is necessary.

5.  Further, narrative reason for his separation (unsatisfactory
performance) accurately reflects the basis for his separation and is fully
supported by the separation packet on file.  As a result, there is an
insufficient evidentiary basis to support a change to the narrative reason
for his separation at this time.  Finally, the NJP and counseling
statements on file were fully supported by the chain of command at the time
they were issued and there is no basis for their removal from the record at
this time.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 April 1983.  Thus, the time for him
to file a request for correction of any error or injustice expired on 31
March 1986.  However, he 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

___ECP_  __BKK __  __RJW __  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 J. Wagner ___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000650                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1983/04/01                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsat Perf                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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