RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 April 2005
      DOCKET NUMBER:  AR20040007969


      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. Michael J. Fowler             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Delia R. Trimble              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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 general (under honorable conditions
discharge) be upgraded to an honorable discharge.

2.  The applicant makes no additional statement.

3.  The applicant provides a DD Form 214 (Certificate of Release or
Discharge from Active Duty) and a two page Board of Veterans Appeals Oral
Arguments, dated 5 August 1987, with a two page data printout.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 13 January 1982.  The application submitted in this case is
dated 20 September 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 6 November 1979, for a
three year term of service.  He successfully completed basic training and
advanced individual training.  He was awarded military occupational
specialty 76C (Equipment and Records Parts Specialist).

4.  On 8 January 1981, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be
at his prescribed place of duty and backing a military vehicle without a
ground guide.

5.  On 27 February 1981, the applicant accepted NJP under Article 15, UCMJ
for failure to be at his prescribed place of duty.

6.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 7
May 1981, shows the applicant was barred from reenlistment for
unsatisfactory conduct and efficiency.  He did not desire to submit a
statement on his own behalf.
7.  On 19 May 1981, the applicant accepted NJP under Article 15, UCMJ for
disobeying a lawful order.

8.  On 11 December 1981, the applicant’s commander signed an elimination
packet and a waiver of rehabilitative transfer on the applicant for
separation under the provisions of Army Regulation 635-200 (Personnel
Separations), chapter 13 for unsuitability.  The reasons cited by the
commander were the applicant’s failure to respond to numerous counseling,
his attempts to rehabilitation had proven to be ineffective, his continued
lateness at work, his pattern of shirking and apathy, and his failure to
report to work that resulted in Article 15 disciplinary action.

9.  On 14 December 1981, the applicant was advised by consulting counsel of
the basis for the contemplated separation action.  The applicant was
advised of the impact of the discharge action.  The applicant signed a
statement indicating that he was advised he was being recommended for
discharge under the provisions of Army Regulation 635-200, chapter 13.  The
applicant declined counsel, waived his right to be heard by a board of
officers, and declined to submit a statement on his own behalf.

10.  On 5 January 1982, the appropriate authority approved the elimination
packet and waiver of rehabilitative transfer recommendation and directed
the applicant receive a general (under honorable conditions discharge)
under the provisions of chapter 13 of Army Regulation 635-200 for
unsuitability.  On 13 January 1982, the applicant separated from the
service after completing 1 year, 7 months, and 24 days of creditable active
service with no days of lost time.

11.  The applicant submitted a document that was addressed to the Board of
Veterans Appeals, dated 5 August 1987.  This document shows that he was
represented by a member of the Disabled American Veterans who appealed a
previous unfavorable rating decision and asked the board to reconsider the
evidence that was presented in his case.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, then in effect, contained
the policy and outlined the procedures for separating individuals for
unsuitability when they were involved in frequent incidents of a
discreditable nature with civil or military authorities and it was
established that further efforts at rehabilitation were unlikely to succeed
or they are not amenable to rehabilitation measures.


13.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant received three Article 15s and was
barred from reenlistment.  The applicant had completed only 1 year, 7
months, and 22 days of active creditable service of his three year term of
service.  Based on these facts, the applicant’s service clearly did not
meet the standards of acceptable conduct and performance of duty for Army
personnel that are required for issuance of an honorable discharge.

2.  Lacking evidence to the contrary, it is concluded that all requirements
of law and regulation were met and that the rights of the applicant were
fully protected throughout the separation process.  Therefore, it is
concluded that the applicant’s discharge was proper and equitable.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 January 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 12 January 1985.  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

__ FE ___  _ DRT __  __RTD __  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                 |AR20040007969                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |21 April 2005                           |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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