RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 May 2005
      DOCKET NUMBER:  AR20040006050


      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. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 was a great Soldier with no
disciplinary action.  He further claims that the type of discharge he has
hinders his ability to improve himself.

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 21 April 1989.  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 1 December 1986.  He was trained in, awarded and
served in military occupational specialty (MOS) 77F (Petroleum Supply
Specialist) 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 does
reveal 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 6 February 1989.  The NJP action was based on
the applicant’s failure to go to his appointed place of duty at the
prescribed time.  His punishment for this offense was a forfeiture of
$200.00 (suspended) and 7 days of extra duty.

5.  On 20 March 1989, the suspended forfeiture imposed by the 6 February
1989 NJP action was vacated.  This action was based on the applicant’s
breech of the peace by wrongfully engaging in a fight in the barracks.
6.  On 6 April 1989, the unit commander notified the applicant of his
intent to initiate separation action on the applicant under the provisions
of chapter 13, Army Regulation 635-200.  The unit commander indicated that
the applicant’s continued retention would have an adverse impact on
military discipline, good order and morale.

7.  The applicant acknowledged receipt of the separation action and after
being advised of the basis for the contemplated separation action and its
effects, the rights available to him and the effect of a waiver of his
rights, he completed an election of rights.  He waived consideration of his
case by and personal appearance before an administrative separation board.
He also waived his right to consulting counsel and elected not to submit a
statement in his own behalf.

8.  On 18 April 1989, the separation authority approved the separation
action and directed the applicant’s service be characterized as under
honorable conditions.  On 21 April 1989, the applicant was separated
accordingly.  The separation document (DD Form 214) he was issued shows he
completed a total of 2 years, 4 months and 21 days of active military
service and held the rank of PFC on the date of his separation.

9.  There is no indication that the applicant applied to the Army Discharge
Review Board for a change to his discharge within the 15-year statute of
limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he was a great Soldier and that his
discharge is hindering his ability to improve himself were carefully
considered.  However, these factors are not sufficiently mitigating to
support granting the requested relief.

2.  The evidence of record confirms the applicant disciplinary history
included his acceptance of NJP.   Further, the record shows his separation
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.  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 21 April 1989.  Thus, the time for him
to file a request for correction of any error or injustice expired on 20
April 1992.  However, he 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

___FE___  ___LDS _  __MJF__  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.




            ____Fred Eichorn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040006050                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/05/12                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1989/04/21                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsat Perf                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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