RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           OCTOBER 7, 2004
      DOCKET NUMBER:   AR2004102226


      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. Luis Almodova                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Patrick H. McGann Jr,         |     |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, in effect, that his under honorable conditions,
general discharge, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he was not completely informed of
his rights.

3.  The applicant provides a copy of his DD Form 214, Certificate of
Release or Discharge from Active Duty, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 7 June 1982.  The application submitted in this case is dated
21 December 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 enlisted in the US Army Reserve for 6 years on 9
September 1980.  The applicant enlisted in the Regular Army for 4 years on
15 October 1980.  He successfully completed basic combat training at Fort
Knox, Kentucky.  The applicant was then sent to Fort Bliss, Texas, to
undergo advanced individual training in the military occupational specialty
(MOS) 19D, Cavalry Scout.  He successfully completed this training on 29
January 1981.

4.  The applicant’s records document that the highest rank and pay grade he
held on active duty was Private First Class, E-3.  He attained this rank on
1 November 1981.

5.  On 29 April 1982, the applicant was notified by his unit commander that
he was initiating action to discharge him from the Army and that he was
recommending that the applicant's service be characterized as, under
honorable conditions.  The commander cited the applicant's inability to
cope emotionally and socially, his lack of self-discipline, and apathetic
attitude towards the Army
as the basis for his proposed action.  To support his recommendation, the
unit commander submitted thirteen statements written by various members of
the applicant's chain of command, on a variety of dates, related to his
performance of duty, conduct, and attitude.

6.  On 17 May 1982, the applicant consulted with counsel [a Judge Advocate
General's Corps Captain] and acknowledged the commander's proposed action
to separate him from the Army.  The applicant elected not to submit a
statement in his own behalf but acknowledged that he understood that if his
service was characterized as under honorable conditions he could expect to
encounter substantial prejudice in civilian life, that there was no
automatic upgrade nor review by any Government agency of a characterization
of service which is under honorable conditions, and that he must apply to
the Army Discharge Review Board or the Army Board for Correction of
Military Records if he wished to have the characterization of his service
reviewed.

7.  On 2 June 1982, the appropriate authority, the Squadron Commander, a
Lieutenant Colonel, approved the applicant's discharge under the provisions
of AR 635-200, Chapter 5, Paragraph 5-31h(2).  He directed that the
applicant's service be characterized as under honorable conditions and that
he be issued a general discharge.

8.  The applicant was discharged in the rank and pay grade of Private
First Class, E-3, on 7 June 1982, under the provisions of Army Regulation
(AR) 635-200, Chapter 5, Paragraph 5-31h(2).  The Narrative Reason for
Separation is Expeditious Discharge Program – Failure to Maintain
Acceptable Standards for Retention.  The applicant's character of service
was characterized as, "Under Honorable Conditions."

9.  On the date of his discharge, the applicant had completed 1 year,
7 months, and 23 days active military service.

10.  Item 26 (Decorations, Medals, Badges, Commendations, Citations and
Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214,
shows that he was awarded the Army Service Ribbon and the Sharpshooter
Marksmanship Qualification Badge, with Rifle Bar.  The record contains no
documentary evidence of acts of valor, achievement, or service warranting
special recognition.
11.  There is no evidence that the applicant applied to the Army Discharge
Review Board during its 15-year statute of limitations for an upgrade of
his discharge.

12.  AR 635-200 sets forth the basic authority for the separation of
enlisted personnel.  Chapter 5 set forth the conditions under which
enlisted personnel may be discharged, released from active duty, or active
duty for training, or released from military control, for the convenience
of the Government.

13.  The Department of the Army began testing the Expeditious Discharge
Program (EDP) in October 1973.  In a message dated 8 November 1974 the
Deputy Chief of Staff for Personnel announced the expansion of the EDP.
The program provided for the separation of soldiers whose acceptability,
performance of duty, and/or potential for continued effective service fall
below the standards required for retention in the Army.  Soldiers may be
separated under this program when subjective evaluation of their commanders
identifies them as lacking qualities for continued military service because
of attitude, motivation, self-discipline, inability to adapt socially or
emotionally, or failure to demonstrate promotion potential.

14.  AR 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, 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 was properly notified by the commander of his intent to
recommend his separation from the Army.  This notification was made on
29 April 1982.  In this notification, the applicant was advised that he had
the right to consult with an officer of the Judge Advocate General's Corps
(JAGC) before completing his acknowledgement.

2.  The evidence shows that he received counseling, by a JAGC Captain, on
17 May 1982.  The applicant acknowledged this counseling in writing.  The
applicant’s contention that he was not appropriately counseled is without
merit.
3.  The applicant’s administrative discharge was accomplished in accordance
with applicable regulations in effect at the time with no indication of any
procedural error that would tend to jeopardize his rights.  The type of
discharge and the reasons therefore were appropriate, given the
circumstances in this case.

4.  In order to justify correction of a military record, the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 June 1982; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 June 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

wtm_____  pms_____  pm______  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.




            ___Walter T. Morrison___
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004102226                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041007                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19820607                                |
|DISCHARGE AUTHORITY     |AR 635-200, Para 5-31h(2)               |
|DISCHARGE REASON        |EDP – Failure to Maintain Acceptable    |
|                        |Standards for Retention                 |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  360  |144.0000                                |
|2.  396                 |144.0135                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



-----------------------
[pic]