RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 July 2004
      DOCKET NUMBER:   AR2004100738


      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             |
|     |Ms. Beverly A. Young              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Walter Morrison               |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Eric Andersen                 |     |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 that his general under honorable conditions
discharge be recharacterized to an honorable discharge, a medical discharge
or a hardship discharge.

2.  The applicant states, in effect, that his general under honorable
conditions discharge for minor disciplinary infractions was unjust because
of the harassment and discriminatory practices he experienced.

3.  The applicant provides a supplemental letter.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 14 September 1989.  The application submitted in this case is
dated             14 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.  The applicant initially served in the U.S. Army Reserve from January
1988 to February 1989.  He enlisted in the Regular Army on 6 February 1989
for a period of four years.

4.  On 21 June 1989, the applicant accepted punishment under Article 15 for
violating a lawful Army Regulation by wrongfully showing up to formation
unshaven on different occasions between 24 May 1989 and 19 June 1989.  His
punishment consisted of reduction to private E-1, a forfeiture of $163.00
(suspended, to be automatically remitted if not vacated before 20 September
1989) and performance of extra duty for a period of 7 days.

5.  On 20 July 1989, the applicant accepted punishment under Article 15 for
violating a lawful general regulation by wrongfully having a blood level of
.065 during duty hours.  His punishment consisted of a forfeiture of
$163.00 (suspended, which was to be automatically remitted if not vacated
before
19 January 1990); performance of extra duty for a period of 14 days; and
restriction for a period of 14 days.  On 4 August 1989, the suspension was
vacated based on two 5.56 rounds being found in the applicant's locker
during a health and welfare inspection.
6.  On various occasions between March 1989 and July 1989, the applicant
received adverse counseling statements for being overweight; for personal
appearance, poor duty performance, and negative attitude; for being late
for formation and unshaven; for his disregard for military customs and
courtesy; for failing to report for extra duty; for a command referred
urinalysis test; for failing to report to the company orderly room for
squad level clean-up detail; for failing to be at his appointed place of
duty; and for failing to report for a legal appointment for Article 15
proceedings.

7.  On 25 August 1989, the applicant’s unit commander notified him of
pending separation action under the provisions of Army Regulation 635-200,
paragraph 14-12a based on minor disciplinary infractions and advised him of
his rights.  The unit commander recommended that rehabilitative
requirements be waived.  The applicant acknowledged notification of pending
separation action, consulted with legal counsel, submitted statements in
his own behalf.  However, the applicant's statements are not available.

8.  The applicant was referred by his command for a mental status
evaluation on an unknown date.  It was determined that the applicant was
mentally responsible for his behavior, able to distinguish right from wrong
and possessed sufficient mental capacity to understand and cooperate
intelligently as a respondent in any administrative or judicial
proceedings.

9.  On 31 August 1989, the separation authority approved the applicant's
discharge under the provisions of Army Regulation 635-200, paragraph 14-12a
with issuance of a general discharge and waived rehabilitation transfer
requirements.

10.  The applicant was discharged from active duty on 14 September 1989.
He completed 7 months and 9 days of creditable service.

11.  There is no evidence in the available records which shows the
applicant was diagnosed with an unfitting medical condition prior to his
discharge.

12.  On 16 October 2002, the Army Discharge Review Board (ADRB) denied the
applicant's request to recharacterize his discharge.

13.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Chapter 14 established
policy and prescribed procedures for separating members for misconduct.
Specific categories include minor disciplinary infractions, a pattern of
misconduct, commission of a serious offense, and convictions by civil
authorities.  Action would be taken to separate a member for misconduct
when it was clearly established that rehabilitation was impracticable or
was unlikely to succeed.  A discharge under other than honorable conditions
was normally appropriate for a soldier discharged under this chapter.
However, the separation authority may direct a general discharge if such is
merited by the soldier’s overall record.  Only a general court-martial
convening authority may approve an honorable discharge or delegate approval
authority for an honorable discharge under this provision of regulation.

14.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the soldier's
service generally has met the standards of acceptable conduct and
performance of duty for Army personnel, or is otherwise so meritorious that
any other characterization would be clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

15.  Paragraph 6-3 of Army Regulation 635-200 states that soldiers of the
Active Army and the Reserve Components may be discharged or released
because of genuine dependency or hardship.  The regulation provides that
hardship exists when, in circumstances not involving death or disability of
a member of a soldier’s (or spouse’s) immediate family, separation from the
Service will materially affect the care or support of the family by
alleviating undue and genuine hardship.

16.  Army Regulation 635-40 governs the evaluation of physical fitness of
soldiers who may be unfit to perform their military duties because of
physical disability.  The unfitness is of such a degree that a soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.

17.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the
decision of the ADRB; therefore, the applicant has timely filed.

2.  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.

3.  The applicant's record of service shows three Article 15s and numerous
adverse counseling statements.  As a result, his record of service was not
sufficiently meritorious to warrant an honorable discharge.

4.  The applicant's contentions have been noted.  However, there is no
evidence in the available records to demonstrate that the applicant was the
victim of harassment or discrimination.

5.  There is no evidence which indicates the applicant incurred any medical
condition that rendered him medically unfit.

6.  There is no evidence of record which shows the applicant submitted a
request for a hardship discharge or that he met the criteria for a hardship
discharge.

7.  The applicant has failed to show through the evidence submitted or the
evidence of record that the narrative reason for separation issued to him
was in error or unjust.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

BE______  WM___  EA______  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            Walter Morrison_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100738                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040722                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19890914                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 14-12a              |
|DISCHARGE REASON        |Misconduct – Minor Disciplinary         |
|                        |Infractions                             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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