RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2005
      DOCKET NUMBER:  AR20040010977


      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. David S. Griffin              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. William D. Powers             |     |Member               |
|     |Ms. Marla J. N. Troup             |     |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, through his Congressional representative, in
effect, that his discharge under honorable conditions be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he needs his discharge upgraded
in order to obtain a concealed weapons permit for his work with the county
sheriff department.

3.  The applicant provides, through his Congressional representative, a
copy of:

      a.  a DD Form 293 (Application for the Review of Discharge or
Dismissal from the Armed Forces of the United States) in which he states,
in effect, that the wording on his discharge is blocking his request for a
concealed weapon permit;

      b.  his DD Form 214 (Certificate of Release or Discharge from Active
Duty) with a separation date of 22 October 1985;

      c.  a second DD Form 214 that is unreadable;

      d.  a Certificate in Lieu of Lost or Destroyed Discharge that
certifies that the applicant was discharged on 22 October 1985 Under
Honorable Conditions (General);

      e.  two letters of support for the applicant to receive a permit to
purchase a firearm and a Conceal Carry Permit;

      f.  a Certificate of Completion Firearms Safety Training Course;

      g.  a letter, dated 10 August 2004, from the applicant to his
Congressional representative requesting assistance in getting his discharge
upgraded;

      h.  a Letter of Appreciation, dated 14 April 1983, for the
applicant's performance of duties as a physical training (PT) instructor
and PT survey tester during the period from
23 March 1983 to 15 April 1983;

      i.  a Letter of Commendation, dated 3 September 1985, for the
applicant's performance of duties as a driver and escort for the deputy
commander of 77th United States Army Reserve Command;

      j.  a Letter of Commendation, dated 1 October 1985, for the
applicant's performance of duties as a driver, signed by the Chief of
Staff, XVII Airborne Corps And Fort Bragg; and

      k.  an undated letter from the non-commissioned officer in charge
(NCOIC), Director of Industrial Operations where in he states, in effect,
that the applicant's attitude and dedication had been above reproach.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 22 October 1985, the date of his discharge.  The application submitted
in this case is dated 6 October 2004 and was received on 19 November 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 military records show that his initial period of active
duty commenced on 28 May 1978.  He was released from active duty training
on
2 September 1978 and was transferred back to his Army National Guard unit.
He had completed 3 months and 5 days of active service characterized as
honorable.

4.  On 24 February 1983, the applicant enlisted in the U.S. Army for a
period
of 4 years.  He completed advance individual training and was assigned the
military occupational specialty (MOS) 68J (electronic warfare/signal
intelligence non-communications interceptor).

5.  The records contain six formal counseling sessions conducted during the
period from 20 June 1984 to 11 September 1985 concerning the applicant's
financial irresponsibility for payment of his just debts and providing
support to his family.

6.  The applicant accepted nonjudicial punishment (NJP) under Article 15,
Uniform Code of Military Justice (UCMJ), on 25 April 1984 and on 12 March
1985.  His offenses included failure to go to his appointed place of duty
and wrongful disposition of military property (pawning his Kevlar helmet).
7.  On 26 June 1985, having been informed of his rights and that he was
suspected of writing letters containing codeword material, the applicant
made a sworn statement where in he admitted to having written a letter
containing "code words of his clearance."

8.  On 13 September 1985, the applicant was formally counseled by his
commander.  The commander advised the applicant that he was considering him
for administrative elimination from the Army under Chapter 13 of Army
Regulation 635-200 (Active Duty Enlisted Administrative Separations).  The
commander informed the applicant that his extensive history of financial
problems, congressional investigations, and being found guilty of practices
dangerous to security made processing for discharge imperative.  The
commander also informed the applicant that his questionable judgment had
resulted in his loss of access to sensitive intelligence material.  Thus,
the applicant was unable to effectively contribute to the intelligence
mission of his unit.

9.  On 17 September 1985, the applicant received a mental evaluation.  The
examiner found that the applicant met the physical retention standards
prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The
examiner further determined that the applicant was mentally responsible,
able to distinguish right from wrong, able to adhere to the right, and had
the mental capacity to understand and participate in proceedings.

10.  On 17 September 1985, applicant received a medical examination and was
found qualified for separation.

11.  On 8 October 1985, the applicant's commander notified the applicant
that the commander was initiating action to discharge him under the
provisions of paragraph 13-2a(3) of Chapter 13 of Army Regulation 635-200
for unsatisfactory performance.  The letter states that the proposed action
was being taken due to the applicant's extensive history of financial
problems and his being found guilty of practices dangerous to security.

12.  The commander's letter advised the applicant of his right to have his
case considered by a board officers; to appear in person before a board
officers; to submit statements in his own behalf; to be represented by
counsel; to waive any of these rights; and to withdraw any waiver of rights
at any time prior to the date the discharge authority directs or approves
his discharge, and request his case be presented before a board of
officers.

13.  On 8 October 1985, the applicant submitted a statement acknowledging
that he had been advised by counsel of the basis for the contemplated
action against him under the provisions of Chapter 13 of Army Regulation
635-200 for unsuitability.  The applicant waived consideration by a board
of officers and waived a personal appearance.  The applicant waived counsel
and stated that he was submitting statements in his own behalf.  A copy of
these statements was not a part of the record.  The applicant further
acknowledged that he might expect to encounter substantial prejudice in
civilian life if a general discharge was issued to him.

14.  On 8 October 1985, the applicant's commander recommended him for
discharge due to unsatisfactory performance.  The commander's specific
reasons for the recommendation for discharge were:

      a.  the applicant's continuing series of financial difficulties, both
in the form of bad debts and failure to meet personal financial
responsibilities to his previous wife; and

      b.  the applicant's "practices dangerous to security" have resulted
in suspension of his access to classified material preventing him from
working within his assigned MOS.

15.  In addition, the applicant's commander requested a waiver of
rehabilitative transfer because the applicant's suspension of access to
classified information and pending security clearance revocation would
prevent him from working in his assigned MOS.

16.  On 10 October 1985, the appropriate authority waived rehabilitative
transfer, approved the recommendation for discharge under the provisions of
Chapter 13 of Army Regulation 635-200, and directed that the applicant be
furnished a General Discharge Certificate.

17.  On 22 October 1985, the applicant was discharged under the provisions
of chapter 13 of Army Regulation 635-200 due to unsatisfactory performance.
  He had completed 2 years, 7 months and 29 days of active service
characterized as under honorable conditions.

18.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within the
ADRB's 15-year statue of limitations.

19.  Paragraph 13-2a(3) of Chapter 13 of Army Regulation 635-200, in effect
at the time, in pertinent part, stated that commanders will separate a
member for unsatisfactory performance when it is clearly established that
the seriousness of the circumstances is such that the member's retention
would have an adverse impact on military discipline, good order, and
morale.

20.  Army Regulation 635-200 (Personnel Separations) 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.  The applicant contends that his discharge under honorable conditions
should be upgraded to an honorable discharge so that he can obtain a
concealed gun permit.

2.  The ABCMR does not correct records solely for the purpose of meeting
standards of another agency.  In addition, the ABCMR does not correct
records solely based on the passage of time.

3.  The letters of appreciation and commendation submitted by the applicant
were reviewed, however, it is noted that one of the letters was dated over
two years prior to the applicant's discharge.  The letters dated 3
September 1985 and 1 October 1985 were issued for duties assigned after his
loss of access to classified information and therefore were outside of the
applicant's MOS.  Therefore, the letters are insufficiently mitigating to
upgrade a properly issued discharge.

4.  Evidence shows that the applicant was properly and equitably discharged
in accordance with regulations in effect at the time.  The type of
discharge directed and the reasons for separation were appropriate
considering all the facts of the case.  The records contain no indication
of procedural or other errors that would tend to jeopardize his rights.

5.  The seriousness of the applicant's practices dangerous to security
resulted in suspension of his access to classified material, processing for
security clearance revocation and prevented him from working within his
assigned MOS.  This, in conjunction with the applicant's financial
irresponsibility while on active duty, do not meet the standards of
acceptable conduct and performance of duty for Army personnel.

6.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 1985, the date of his
discharge; therefore, the time for the applicant to file a request for
correction of any error or injustice expired on 21 October 1988.  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

___kan__  ____wdp_  ___mt___  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.




                                  ___Kathleen A. Newman_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040010977                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050823                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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