RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           19 May 2005
      DOCKET NUMBER:  AR20040005851


      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          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 a fully honorable discharge (HD).


2.  The applicant states, in effect, that he was very young at the time he
served in Germany and made many mistakes.  However, he did serve his
country with dignity and was proud to be a Soldier.  He states that all he
asks for now is justice through an upgrade of his discharge.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 17 November 1980.  The application submitted in this case
is dated 9 August 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 10 October 1979, at age 18.  He was trained in,
awarded and served in military occupational specialty (MOS) 05B (Radio
Operator) and the highest rank he attained while serving on active duty was
private first class (PFC).

4.  The applicant’s record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes his acceptance of nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on four separate occasions.
5.  On 14 January 1980, the applicant accepted NJP for willfully disobeying
a lawful order from a superior noncommissioned officer (NCO).  His
punishment for this offense was a forfeiture of $116.00.

6.  On 13 March 1980, the applicant accepted NJP for stealing a money order
from another Soldier.  His punishment for this offense included a
forfeiture of
$104.00, a reduction to private/E-1 (PV1) and 14 days of extra duty and
restriction.

7.  On 30 September 1980, the applicant accepted NJP for assault,
disobeying a lawful order and being disrespectful to a superior NCO.  His
punishment for these offenses was a reduction to PV1 (suspended),
forfeiture of $200.00 per month for two months ($150.00 per month for two
months suspended), and 45 days of extra duty and restriction.  On 2 October
1980, the suspended portion of the punishment was vacated based on his
breaking restriction and possessing marijuana.

8.  On 3 October 1980, the applicant accepted NJP for possessing marijuana.
 His punishment for this offense was a forfeiture of $117.00 and 14 days of
restriction and extra duty.

9.  On 3 October 1980, the unit commander notified the applicant that he
intended to initiate separation action on the applicant under the
provisions of chapter 13, Army Regulation 635-200, by reason of
unsuitability (Apathy, defective attitude, or inability to expend effort
constructively).  The unit commander cited the applicant’s disciplinary
history and inability to expend effort constructively as the reasons for
taking the action.

10.  On 7 October 1980, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation, its effects and of
the rights available to him.  Subsequent to this counseling, the applicant
waived his right to have his case considered by a board of officers, his
right to a personal appearance before a board of officers and his right to
consulting counsel.  He also elected not to submit a statement in his own
behalf.
11.  On 4 November 1980, the separation authority approved the applicant’s
separation and directed that he receive a GD.  On 17 November 1980, the
applicant was discharged accordingly.

12.  The separation document (DD Form 214) issued to the applicant upon his
separation confirms he completed 1 year, 1 month and 8 days of active duty
service on the enlistment under review and that he held the rank of PV1 at
the time.  This document also shows that during his active duty tenure, he
earned the Parachutist Badge.

13.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade of his discharge within the 15-
year statute of limitations of that board.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided the authority for the separation of enlisted personnel for
unsuitability based on inaptitude, personality disorder, apathy, or
homosexual tendencies.  Members separated under these provisions could
receive either an HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his youth impaired his ability to
serve and that his discharge was unjust were carefully considered.
However, these factors are not sufficiently mitigating to warrant an
upgrade of his discharge at this time.

2.  The applicant’s record reveals an extensive disciplinary history that
clearly diminished the quality of his service below that meriting a fully
honorable discharge.

3.  The evidence of record confirms the applicant’s separation processing
was accomplished in accordance with the applicable regulation in effect at
the time.  All requirements of law and regulation were met and the rights
of the applicant were fully protected throughout the separation process.
Further, the applicant’s discharge accurately reflects his overall record
of undistinguished service.

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 should have discovered the alleged error or
injustice now under consideration on 17 November 1980.  Thus, the time for
him to file a request for correction of any error or injustice expired on
16 November 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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___BJE__  ___LMD_  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                 |AR20040005851                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/19                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1980/11/17                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsuitability                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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