RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           21 June 2005
      DOCKET NUMBER:  AR20040007737


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |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 that all the counseling statements in his
records be destroyed and that his separation code and narrative reason for
separation be changed.

2.  The applicant states that he has a lot of counseling statements in his
records that were never seen by him.  He was supposed to have been let out
of the Army with a reduction in force separation description, not
unsatisfactory performance.  Also, all the counseling statements are marked
at the bottom "to be destroyed upon separation."  He would like this done
because the majority of the statements in there are false.  They accuse him
of certain things that he has done that were all unfounded and he has
nothing positive to show that he was cleared.  This affects his ability to
be employed with a larger police department.

3.  The applicant provided examples of how the accusations were false.  He
was accused of being pulled from road duty because of his disregard for
standing operating procedures.  That accusation was unfounded.  He was
accused of having a calling card number belonging to another Soldier
written down in his wallet.  The number was given to him by that Soldier
and they used it together and split the bill.  He was accused of possessing
a civilian beeper.  His girlfriend gave him the beeper.  He remembers he
was read his rights and questioned about all of the incidents, but he was
forced to make a statement about the round chambering incident by the U. S.
Army Criminal Investigation Command (CID) who disregarded his rights after
he requested a lawyer to be present before questioning began.

4.  The applicant provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a DA Form 268 (Report to Suspend Favorable
Personnel Actions (FLAG)) dated 6 November 1990; the front pages of 28 DA
Forms 4856 (General Counseling Form); an Observation Report; a DA Form 3881
(Rights Warning Procedure/Waiver Certificate) with a hand-written statement
and a CID Form 44 (Interview Worksheet) attached; and page 2 only of three
DA Forms 2823 (Sworn Statement).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 May 1991.  The application submitted in this case is dated
25 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 enlisted in the Regular Army on 5 October 1989.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 95B (Military Police).  He was assigned to
the Law Enforcement Activity, Fort McPherson, GA on or about 23 February
1990.

4.  The applicant provided a DA Form 3881 dated13 February 1991 that shows
a Military Police Investigator wanted to question him about an offense of
failure to obey a lawful order/regulation.  The applicant indicated on the
form that he did not want to give up his rights and he wanted a lawyer.  An
undated, unsigned statement was attached to this form, apparently made by
the applicant.

5.  On 8 April 1991, the applicant underwent a mental status evaluation.
He was found to have the mental capacity to understand and participate in
the proceedings.  The DA Form 3822-R (Report of Mental Status Evaluation)
noted in the remarks section, "Panicked at having to leave the military.
Wants help with his lying."

6.  On 16 April 1991, the applicant’s commander prepared a Notification of
Separation under the provisions of Army Regulation 635-200, chapter 13, for
failing to develop sufficiently into a satisfactory Soldier.  His
recommendation cited the applicant's three dishonored checks; three
instances of failing to obey a lawful order; three instances of conduct
unbecoming a Soldier; one instance of failing to be at the appointed place
at the appointed time; one instance of unauthorized use of another
Soldier's calling card; and one unauthorized use of a civilian business
beeper.

7.  On 16 April 1991, the applicant acknowledged receiving the Notification
of Separation.  On 17 April 1991, he acknowledged that he was advised by
consulting counsel of the basis for the contemplated action to accomplish
his separation for failure to develop into a satisfactory Soldier under the
provisions of Army Regulation 635-200, chapter 13.  He was informed that
any statement he desired to submit in his behalf must reach the commander
within 7 duty days after he received the letter.  No statement is
available.

8.  On 7 May 1991, the applicant completed a separation physical
examination and was found qualified for separation.
9.  On 8 May 1991, the applicant's commander formally recommended the
applicant be separated under the provisions of Army Regulation 635-200,
chapter 13.  He noted that the applicant had had one rehabilitative
transfer into another platoon.  The recommendation noted that an
unspecified number of counseling statements were attached as enclosures to
the recommendation.  The reverse side of the counseling statements are not
available.

10.  On 10 May 1991, the appropriate authority approved the recommendation
that the applicant be separated due to unsatisfactory performance and
directed that he be given an honorable.

11.  On 24 May 1991, the applicant was discharged, with an honorable
characterization of service, in pay grade E-2, under the provisions of Army
Regulation 635-200, chapter 13.  His DD Form 214 shows the narrative reason
for separation as unsatisfactory performance and his separation code as JHJ
(involuntary discharge for unsatisfactory performance under the provisions
of Army Regulation 635-200, chapter 13).  He had completed 1 year, 7
months,  and 20 days of creditable active service and had no lost time.

12.  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.

13.  The disposition instructions for the DA Form 4586 are listed at the
bottom of the front page:  "This form will be destroyed upon:  reassignment
(other than rehabilitative transfers), separation at ETS, or upon
retirement."  The routine uses of the form are listed at the top of the
front page of the form:  "Prerequisite counseling under paragraphs 5-8, 5-
13, chapters 11, 13, or section III, chapter 14, Army Regulation 635-200.
May also be used to document failures of rehabilitation efforts in
administrative discharge proceedings."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he never saw the counseling statements in
his records.  While the reverse sides of the DA Forms 4586 (which would
have indicated that he acknowledged the counseling) are not available, the
commander had cited in the Notification of Separation several instances of
misconduct on the part of the applicant.  The commander also specifically
cited two of the examples the applicant now contends were false accusations
-- one instance of unauthorized use of another Soldier's calling card and
one unauthorized use of a civilian business beeper.  Absent the
availability of the reverse side of these forms, the Board presumes the
applicant did acknowledge being counseled about the incidents mentioned on
the front side of the forms.

2.  On 16 April 1991, the applicant acknowledged receiving the Notification
of Separation and that he could submit any statement he desired in his
behalf.  There is no evidence to show that he submitted a statement
refuting any of the misconduct cited by his commander including the two
specific examples he contends were false accusations and he does not now
contend that he did submit a statement at the time refuting that
misconduct.

3.  There is no evidence of record to show the applicant was "supposed to
have been let out of the Army with a reduction in force separation
description."  To the contrary, all the evidence of record shows that he
was recommended for separation for unsatisfactory performance and he
acknowledged that he was advised by consulting counsel of the basis for the
contemplated action to accomplish his separation for failure to develop
into a satisfactory Soldier under the provisions of Army Regulation 635-
200, chapter 13.

4.  The applicant provided a DA Form 3881 indicating he did not waive his
rights and that he wanted a lawyer and an unsigned, undated statement
attached to that DA Form 3881.  However, there is no evidence to show that
the statement was made by him or, if it was, when it was made.  More
importantly, this was only one incident in a long series of incidents for
which the applicant received the counseling that led to his separation for
unsatisfactory performance.

5.  The applicant contends that the DA Forms 4856 should be destroyed
because they are marked at the bottom "to be destroyed upon separation."
The disposition instructions actually state that the form will be destroyed
upon reassignment (other than rehabilitative transfers), separation at ETS
(expiration term of service, or upon retirement.  The applicant did not
separate at his ETS.  He was involuntarily separated prior to his ETS.  In
addition, one of the routine uses of the form is to document failures of
rehabilitation efforts in administrative discharge proceedings.  Since
these DA Forms 4856 documented the reasons behind his recommended
separation for unsatisfactory performance, they have been properly retained
with his separation packet.

6.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  There is no evidence in
the records and he has not provided any to show he did not know he was
being recommended for separation for unsatisfactory performance.  Given the
numerous incidents for which he was counseled, including several instances
of dishonored checks, the applicant's separation was equitable and he was
given the proper narrative reason for separation and the proper separation
code.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 May 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         23 May 1994.  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

__mkp___  __phm___  __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.




            __Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040007737                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050621                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |991/05/24                               |
|DISCHARGE AUTHORITY     |AR 635-200, ch 13                       |
|DISCHARGE REASON        |04.00                                   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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