RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040003416


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathan 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 the narrative reason for her
discharge be changed.

2.  The applicant states that she did not serve unsatisfactorily.  She was
unable to perform physically due to her service-connected disability.  She
is currently rated at 40 percent for her back and leg problems.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on    1 October 1997.  The application submitted in this case is
dated 21 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 30 July 1996.  She
completed basic training.  She did not complete advanced individual
training (AIT).

4.  On 29 July 1997, the applicant was counseled for allowing a male
soldier into her room and hiding him in her room.

5.  On 12 August 1997, the applicant underwent a mental status evaluation.
She was found to be mentally responsible at the time and date of the
interview and to possess sufficient mental capacity to understand and
cooperate intelligently as a respondent in any administrative or judicial
proceedings that might involve her.

6.  On 25 August 1997, the applicant completed a separation physical and
was found qualified for separation.  The Report of Medical Examination did
note that the applicant's knees had a moderate "pop" with crepitus over the
patella (left greater than the right).  The Report of Medical History noted
that she had tendonitis of both knees since March 1997, had been treated
for lower back pain, had chronic shin splints, and that she was currently a
holdover at AIT because she could not pass the Army Physical Fitness Test.

7.  On 27 August 1997, the applicant accepted non-judicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for, with intent
to deceive, making an official statement, to wit:  (No, there is no one
else in here), which was totally false and was then known by her to be
false; and for disobeying a lawful order, having knowledge of the lawful
order, by wrongfully allowing a male soldier to hide in her room.  Her
punishment was a forfeiture of $300.00 pay per month for 2 months, with
$300.00 suspended to be automatically remitted if not vacated before 27
November 1997; extra duty for 30 days, and restriction for 30 days.

8.  On 2 September 1997, the applicant was counseled for failing to follow
instructions (not to wear civilian clothes while not on pass).

9.  On 2 September 1997, the applicant was counseled for missing bed check.


10.  On 17 September 1997, the applicant's suspended punishment of a
forfeiture of $300.00 was vacated.

11.  On 19 September 1997, the applicant’s commander initiated action to
separate her under the provisions of Army Regulation 635-200, chapter 13
for unsatisfactory performance.

12.  On 19 September 1997, the applicant was advised by consulting counsel
of the basis for the contemplated separation action and advised of its
effects, of the rights available to her, and the effect of any action taken
by her in waiving her rights.  She requested consulting counsel.  She
elected not to submit a statement in her own behalf.

13.  On 23 September 1997, the applicant's commander formally recommended
she be separated.  He cited as the reasons for the recommended action the
applicant's Article 15 for disobeying a lawful order and making a false
official statement and her supplementary action under Article 15 vacating a
suspended punishment for disobeying a lawful order.

14.  On 23 September 1997, the appropriate authority approved the
recommendation and directed the applicant receive an Honorable Discharge
Certificate.

15.  On 1 October 1997, the applicant was discharged, in pay grade E-2,
under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory
performance, with an honorable discharge.  She had completed 1 year,
       2 months, and 2 days of creditable active service and had no lost
time.

16.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 of that regulation provides,
in pertinent part, that a member may be separated when it is determined
that he or she is unqualified for further military service because of
unsatisfactory performance.  Commanders will separate a Soldier for
unsatisfactory performance when it is clearly established that, in the
commander’s judgment, the Soldier will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
Soldier.

DISCUSSION AND CONCLUSIONS:

1.  There is evidence of record to show the applicant had back and knee
problems and was a holdover at AIT because she could not pass the Army
Physical Fitness Test.  However, her separation action was initiated
because of her record of misconduct.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors that would tend to jeopardize her rights.  Her record of
disciplinary actions warranted the type (unsatisfactory performance) of
separation, and therefore the narrative reason, under which she was
processed.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         30 September 2000.  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

__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                 |AR20040003416                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050315                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1997/10/01                              |
|DISCHARGE AUTHORITY     |AR 635-200, ch 13                       |
|DISCHARGE REASON        |A93.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]