RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003175


      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          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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 general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he has been a model citizen since
his discharge.  He also states that he has maintained a good standing in
his community and has held responsible jobs.  He claims that he is disabled
and needs his medical records and related documents.

3.  The applicant provides a copy of his separation document (DD Form 214),
a police report and his employment history in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 12 September 1980.  The application submitted in this case
is dated 12 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’s record shows that he enlisted in the Regular Army and
entered active duty on 3 June 1979.  He successfully completed basic combat
training and advanced individual training at Fort Dix, New Jersey and was
awarded military occupational specialty (MOS) 63B (Power Generator/Wheel
Vehicle Mechanic).  Upon completion of AIT, he was assigned to Fort Hood,
Texas.

4.  The applicant’s documents no acts of valor, significant achievement, or
service warranting special recognition.  His disciplinary history includes
his acceptance of nonjudicial punishment (NJP) under the provisions of
Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate
occasions.

5.  On 7 November 1979, he accepted NJP for assaulting another Soldier.
His punishment for this offense included forfeiture of $104.00 and 14 days
of restriction and extra duty.
6.  On 27 May 1980, the applicant accepted NJP for failing to go to his
appointed place of duty at the prescribed time.  His punishment for this
offense included a reduction to private/E-1 and 30 days confinement.

7.  On 23 July 1980, the applicant accepted NJP for wrongfully having in
his possession one ounce, more or less, of marihuana.  His punishment for
this offense included a forfeiture of $100.00 per month for two months and
14 days of restriction and extra duty.

8.  On 1 August 1980, his unit commander notified the applicant that
separation action was being initiated on him under the provisions of the
Expeditious Discharge Program (EDP), as outlined in chapter 5, Army
Regulation 635-200.  The unit commander further informed the applicant he
intended to recommend that he receive a GD.  The unit commander cited the
applicant’s inability to adapt socially and lack of self-discipline as the
reasons for the separation action.

9.  The applicant consulted counsel and was advised of the basis for the
contemplated separation action and its effects, and of the rights available
to him. Subsequent to receiving this counseling, the applicant elected to
consent to the separation action and chose not to submit a statement in his
own behalf.

10.  The separation authority approved the applicant’s separation under the
provisions of the EDP and directed the applicant receive a GD.  On
12 September 1980, the applicant was discharged accordingly.

11.  The DD Form 214 issued to the applicant on the date of his discharge,
12 September 1980, confirms that he was separated under the provisions of
paragraph 5-31h(2), Army Regulation 635-200, by reason of failure to
maintain acceptable standards for retention.  It also shows that at the
time, he had completed a total of 1 year, 1 month and 10 days of active
military service.  This document further shows that during his active duty
tenure, the applicant earned the Expert Qualification Badge with Rifle Bar.


12.  There is no indication in the record that the applicant applied for an
upgrade of his discharge to the Army Discharge Review Board within its 15
year statute of limitations.
13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 5, then in effect, provided the
policy and outlined the procedures for separating individuals under the EDP
who demonstrated that they could not or would not meet acceptable standards
required of enlisted personnel. An HD or GD could be issued under this
program.

14.  Veterans or next-of-kin of deceased veterans may request records from
the National Personnel Records Center (NPRC).  Military records may be
requested by submitting a Standard Form 180 or writing a letter that
includes the following information:  service number or social security
number, branch of service, dates of service and date and place of birth.
In addition, if the request is for records that may have been involved in
the 1973 fire, the letter should also include place of discharge, last unit
of assignment, place of entry into the service, if known.  Veterans or next-
of-kin of deceased veterans can also request records by accessing the
vetrecs.archives.gov world wide website.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with the applicable regulation in
effect at the time.  All requirements of law and regulation were met and
that the applicant’s rights were protected throughout the separation
process.  The record further confirms that the applicant voluntarily
consented to the discharge.

2.  The applicant’s outstanding post service conduct is acknowledged and
while this behavior is admirable, it alone does not provide a basis for
upgrading the applicant’s discharge.  The applicant’s disciplinary record
reveals a history of misconduct that clearly diminished the qualify of the
applicant’s service below that meriting an HD.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 September 1980.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
11 September 1983.  However, 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.

5.  The applicant is advised that no medical records were provided with the
military records submitted for review by the Board, as result his request
for copies of these records cannot satisfied.  In order to obtain copies of
the records in question, he should contact his local VA representative to
determine if his medical records are on file with the local VA, or to
obtain assistance in submitting a request for the records to the NPRC.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___JTM__  ___JKR_  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                 |AR20040003175                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1980/09/12                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |EDP                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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