RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 February 2005
      DOCKET NUMBER:  AR20040000788


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |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 discharge be upgraded from under other
than honorable conditions to an honorable discharge.

2.  The applicant states, in effect, that he was discharged because of
using profane language towards a female dining facility employee that did
not speak the English language (statement interpreted by her husband) and
for not paying his light bill.

3.  The applicant further states that he sought help after being separated
from the service but he was unemployed without an address.

4.  The applicant provides a Privacy Act Statement from a Member of
Congress, dated 14 April 2004; and a letter from a Member of Congress,
dated 8 April 2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 2 October 1981.  The application submitted in this case is
dated 4 June 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 enlisted in the Regular Army on 18 May 1977 and
successfully completed basic training and advanced individual training.  He
was awarded military occupational specialty 94B (Food Service Specialist).

4.  On 8 July 1980, the applicant was convicted by a summary court-martial
for oral communication of insulting language and failure to be at his
prescribed place of duty on 21 June 1980 and 23 June 1980.  He was
sentenced to be reduced to specialist four/pay grade E-4 and to forfeit
$100.00 for one month.

5.  On 4 September 1980, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure
to be at his appointed place of duty and wrongful appropriation of a
government vehicle.

6.  On 7 October  1980, the applicant accepted NJP under Article 15, UCMJ
for failure to be at his appointed place of duty.

7.  On 26 August 1981, the applicant’s commander signed an elimination
packet on the applicant for separation under the provisions of chapter 14
of Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), for misconduct – patterns of misconduct.  The reason cited by
the commander was the applicant’s patterns of shirking and failure to pay
debts.

8.  On 26 August 1981, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-200.  The applicant
declined counsel, waived his right to be heard by a board of officers, and
declined to submit a statement on his own behalf.

9.  On 21 September 1981, the appropriate authority approved the
recommendation and directed the applicant receive a discharge under other
than honorable conditions under the provisions of chapter 14 of Army
Regulation
635-200 for misconduct.  He had completed 6 years, 4 months, and 6 days of
creditable active service and had no lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed and an unfit medical condition is
not the direct or substantial contributing cause of his misconduct.  A
discharge under other than honorable conditions is normally appropriate for
a Soldier discharged under this chapter.

11.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.



12.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded from under other
than honorable conditions to an honorable discharge.  However, his records
show that he was convicted by a summary court-martial, received two Article
15s, and had several instances of indebtedness during his military service.
 Based on these facts, the applicant’s service clearly did not meet the
standards of acceptable conduct and performance of duty for Army personnel
that are required for issuance of a general or honorable discharge.

2.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.  He had the
opportunity to be heard by a board of officers or to make a statement in
his own behalf at the time.  He failed to take advantage of these
opportunities.

3.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 October 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 1 October 1984.  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

________  ________  ________  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.




                                  ___ Mr. Melvin H. Meyer_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000788                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |3 February 2005                         |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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