RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           13 May 2004
      DOCKET NUMBER:   AR2004100572


      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. Mark D. Manning               |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Mae M. Bullock                |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 discharge (under
honorable conditions) be upgraded to a honorable discharge.

2.  The applicant states that he was young and homesick at the time of his
military service.

3.  The applicant provides no documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 May 1988, the date of his separation from the Army.  The
application submitted in this case is dated 29 October 2003.

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 limitation 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.  Evidence of record shows that the applicant entered active duty on
20 July 1987.  He successfully completed basic training and advanced
individual training and was awarded the military occupational specialty
63B10 (Light Vehicle Mechanic).  He was subsequently assigned to the 2nd
Battalion, 10th Cavalry, at Fort Knox, Kentucky.

4.  On 8 April 1988, nonjudicial punishment (NJP) was imposed against the
applicant for striking an enlisted member and under age consumption of an
alcohol beverage(s) on 26 March 1988.  His punishment consisted of
forfeiture of $335.00 for two months, restriction to the company area for
45 days, and extra duty for 45 days.

5.  On 11 October 1979, the applicant was convicted by a summary court-
martial of violation of the Uniform Code of Military Justice, Article 134
for breaking restriction on 15 April 1988.  His sentence consisted of
confinement for 14 days and forfeiture of $335.00 per month for one month.
The sentence was adjudged on 2 May 1988.

6.  On 16 May 1988, the unit notified the applicant of its intention to
separate the applicant with a general discharge for unsatisfactory
performance under the provisions of Chapter 13, Army Regulation 635-200.
The unit commander further wrote that this separation was based on the
applicant's punishments and the unit commander's determination that the
applicant would be a disruptive influence.

7.  The applicant was advised that this action was suspended for 7 days to
give the applicant the opportunity to exercise the following rights:

      a.  "Request appointment of military counsel;

      b.  submit a statement on his behalf; or


      c.  have your case heard before an administration separation board;

      d.  to waive the foregoing rights in writing or by declining to reply
within 7 days."

8.  On 16 May 1988, the applicant consulted with the Defense Counsel at
United States Trial Defense Service, Fort Knox Field Office, and the
applicant was advised of his rights and the effect of a waiver of his
rights.

9.  On 16 May 1988, the applicant acknowledged that he was advised of the
basis for his separation under the provisions of Army Regulation 635-200.
The applicant indicated that he was counseled by appropriate counsel and
that he was not entitled to have his case heard by an administrative
separation board. The applicant also indicated that he did provide
statements on his own behalf and that he requested representation by
military counsel.

10.  On 16 May 1988, the unit commander recommended the applicant be
separated under the provisions of Chapter 13, Army Regulation 635-200, for
unsatisfactory performance.

11.  On 16 May 1988, the commander of the 2nd Battalion, 10th Cavalry,
approved the recommendation for discharge and directed that the applicant
be issued a characterization of service discharge "under general
conditions."

12.  On 23 May 1988, the applicant was discharged under provisions of
Chapter 13, Army Regulation 635-200, for unsatisfactory performance.
Records show that the applicant had completed 9 months, and 23 days of
active federal service at the time of his separation and had 11 days of
lost time due to confinement.

13.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharge of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, provides for separation due to
unsatisfactory performance when in the commander’s judgment the individual
will not become a satisfactory soldier; retention will have an adverse
impact on military discipline, good order and morale; the service member
will be a disruptive influence in the future; the basis for separation will
continue or recur; and/or the ability of the service member to perform
effectively in the future, including potential for advancement or
leadership, is unlikely.  Service of soldiers separated because of
unsatisfactory performance under this regulation will be characterized as
honorable or under honorable conditions.

14.  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.  The applicant contends that he was young at the time of his discharge
and that he was homesick.

2.  Records show that the applicant was 18 years old at the time his active
service began and 19 years old at the time of his discharge.  Therefore,
his contention that he was young at the time of his offenses does not
mitigate his indiscipline.

3.  Evidence shows that the applicant was properly and equitably discharged
in accordance with the regulations in effect at the time.

4.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.

5.  The applicant requests that his discharge be upgraded to an honorable
discharge.  However, his records show that he was convicted by a summary
court-martial and received an Article 15 during his military 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
which are required for issuance of an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 23 May 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 22 May 1991.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MDM__  _MMB___  _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.




                  _Mark D. Manning___
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100572                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/05/13                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |