RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 April 2005
      DOCKET NUMBER:  AR20040004308


      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. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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 uncharacterized discharge
be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that his uncharacterized separation
was the result of prejudice on the part of his unit commander, a captain.
He claims he was separated because he found proof of racial prejudice
within the unit.

3.  The applicant provides an discharge review application (DD Form 293) in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 7 August 1992.  The application submitted in this case is
dated
26 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 limitations 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 29 January 1992 and the highest rank he attained
while serving on active duty was private/E-2.

4.  The applicant’s record 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
16 July 1972.
5.  The 16 July 1992 NJP action imposed on the applicant was based on his
seven specifications of violating Article 91 of the UCMJ and his violation
of Article 134 of the UCMJ.  His Article 91 violations included his
disobeying the lawful orders of superior noncommissioned officers (NCOs) on
three separate occasions, his being disrespectful in language toward
superior NCOs on two separate occasions, his wrongfully using provoking
words toward a superior NCO and his treating a superior NCO with contempt.
His Article 134 violation was his being disorderly in training.  The
punishment imposed included a forfeiture of $183.00 (suspended for 13 days)
and 10 days of extra duty and restriction.

6.  On 22 July 1992, the suspended forfeiture portion of the Article 15
punishment imposed on the applicant was vacated.  This action was based on
the applicant willfully disobeying the lawful order of a superior NCO.

7.  On 23 July 1992, the applicant’s unit commander informed the applicant
of the intent to process him for separation under the provisions of chapter
11, Army Regulation 635-200, by reason of entry level status (ELS).  The
unit commander cited the applicant’s repeated insubordination and
disrespect toward unit leaders, and his failure to respond to repeated
counseling and disciplinary action as the basis for taking the separation
action.  The applicant declined the opportunity to consult with legal
counsel and completed a written waiver of his rights.

8.  On 3 August 1992, the separation authority approved the applicant’s
separation for unsatisfactory performance and conduct while in an Entry
Level Status (ELS).  The separation authority directed that the applicant
be separated under the provisions of chapter 11, Army Regulation 635-200
and that his service be uncharacterized based on his ELS.  On 7 August
1992, the applicant was discharged accordingly.  At the time of his
separation, he had completed
6 months and 9 days of active military service.

9.  On 7 January 1997, the Army Discharge Review Board (ADRB), after a
thorough review of the applicant’s record and the issues he presented,
concluded that his discharge was proper and equitable and it voted to deny
his request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-9 contains guidance on ELS
separations.  It states, in pertinent part, that a separation will be
described as entry-level with service uncharacterized if at the time
separation action is initiated, the Soldier has less than 180 days of
continuous active duty service.

11.  Chapter 11 of the separations regulation provides for the separation
of personnel due to unsatisfactory performance, conduct, or both, while in
an ELS.  An uncharacterized service description is normally granted to
Soldiers separating under this chapter.  A general discharge is not
authorized under ELS conditions, and an HD is rarely ever granted.  An HD
may be given only in cases which are clearly warranted by unusual
circumstances involving outstanding personal conduct and/or performance of
duty.

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 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 ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 applicant’s contention that his discharge was unjust and the result
of prejudice was carefully considered.  However, while the Board would not
allow any action to stand that was the result of racial discrimination,
there is no evidence of record that corroborates the applicant’s claims of
prejudice in this case.

2.  The evidence of record confirms that separation action was initiated on
the applicant while he was in an ELS, prior to his completing 180 days of
continuous active military service.  The record further shows that 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.

3.  The record also shows the applicant received an uncharacterized
discharge, as a result of being separated while in an ELS.  A Soldier is in
an ELS, or probationary period, for the first 180 days of continuous active
duty.  An HD may be granted only in cases that are clearly warranted by
unusual circumstances involving outstanding personal conduct and/or
performance of duty.  There are no such circumstances present in the
applicant’s record.  As a result, the requested relief is not warranted in
this case.

4.  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.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 7 January 1997.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 6 January 2000.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___AMC_  ___MVT _  ___JEV _  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.




            ____James E. Vick______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040004308                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/14                              |
|TYPE OF DISCHARGE       |UNCHAR                                  |
|DATE OF DISCHARGE       |2005/04/DD                              |
|DISCHARGE AUTHORITY     |AR 635-200 C11                          |
|DISCHARGE REASON        |ELS                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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