RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          26 April 2005
      DOCKET NUMBER:  AR20040003576


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Lawrence Foster               |     |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 DD Form 214 (Certificate of Release or
Discharge from Active Duty), Item 24 (Character of Service) "
uncharacterized" be changed from uncharacterized to honorable.

2.  The applicant states, in effect, that he was injured while on active
duty, his performance was affected and his military career was shortened.
He believes he is being unfairly punished with an "uncharacterized"
discharge because of an injury.

3.  The applicant provides in support of his request a copy of his DD Form
214 and a copy of a letter that was written to his congressman on 12 June
2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 29 November 1994.  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.  On 2 June 1994, the applicant enlisted in the Army National Guard
(ARNG) for a period of 8 years.  He was ordered to active duty for training
from for approximately 12 weeks for completion of basic combat training and
advanced individual training.  On 12 October 1994, he was assigned to Fort
Sill, Oklahoma for completion of training.

4.  On 21 October 1994, while running, the applicant ran into a drain
gutter, and injured his right knee.

5.  The applicant's available record contains five General Counseling Forms
dated between 24 October and 9 November 1974, which shows he was counseled
numerous for occasions for failure to adapt to a military environment, for
the inability to follow instructions, for refusal to train on several
occasions, for displaying disrespect towards drill sergeants, for
disobeying a lawful order (twice), for failure to go to his appointed place
of duty at the time prescribed, for lack of self discipline, for improper
behavior and for unsatisfactory performance.

6.  On 14 November 1994, the applicant's unit commander notified him of
initiation of separation action under the provisions of chapter 11, Army
Regulation 635-200, due to entry-level status (ELS) performance and conduct
with an uncharacterized discharge.  The commander cited the basis for his
recommendation was the applicant's lack of motivation.  The commander
believed the applicant could not, or would not adapt to the military and
demonstrate the character and behavior characteristics compatible with
satisfactory continued service.  The commander believed the applicant had
no potential for rehabilitation and he would not become a productive
Soldier.

7.  On the same date, the applicant consulted with legal counsel.  He was
advised of his rights and the impact of the discharge action.  He
acknowledged notification and waived further legal representation.  He
declined to submit a statement in his own behalf.

8.  On 22 November 1994, the approval authority waived further
rehabilitative efforts and directed that the applicant be separated under
the provisions of chapter 11, Army Regulation 635-200, due to ELS, with an
uncharacterized discharge.

9.  On 29 November 1994, the applicant was released under the provisions of
chapter 11, Army Regulation 635-200, due to ELS with and uncharacterized
discharge and transferred to the ARNG.  He had completed 1 month, and
16 days of creditable active military service.

10.  On 26 April 2000, the Army Discharge Review Board denied the
applicant’s request to upgrade the characterization of his service to
honorable.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 11 of that regulation provides
for the separation of personnel during the initial 180 days of service
while still in an entry-level status.  The policy applies to soldiers who
have demonstrated that they are not qualified for retention because they
cannot meet the minimum standards prescribed for successful completion of
training because of lack of aptitude, ability, motivation or self-
discipline.  These soldiers are given an uncharacterized discharge and,
when discharged under the provisions of chapter 11, are discharged by
reason of entry-level status performance and conduct.  Only in certain
meritorious cases approved by the Secretary of the Army are they entitled
to an honorable discharge.

12.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was discharged due to
unsatisfactory performance and conduct.  He lacked the motivation and
skills required to become an effective soldier.  The applicant's
administrative separation was accomplished in compliance with applicable
regulations with no indication of procedural errors, which would have
jeopardized his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering the facts of the case.

3.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 26 April 2000.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 25 April 2003.  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

__mhm___  __kah___  ___lf___  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.


                                  Melvin H. Meyer
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040003576                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050426                                |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |19941129                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 11                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.2400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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