RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          14 December 2004
      DOCKET NUMBER:  AR2004105253


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer L. Prater            |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane J. Armstrong            |     |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 General Discharge (GD)
under honorable conditions be upgraded to a fully honorable discharge (HD).

2.  The applicant states, in effect, that he believes his discharge should
be upgraded, because it is the right thing for the Board to do.

3.  The applicant provides in support of his request a copy of his DD Form
214 (Certificate of Release or Discharge from Active Duty), a Social
Security Card and an Identification Card from the state of California.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 March 1985.  The application submitted in this case is dated
3 March 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 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.  On 16 September 1982, the applicant enlisted in the Delayed Entry
Program (DEP), in the US Army Reserve for a period of 6 years.  On 16
November 1982, he was discharged from the DEP and enlisted in the Regular
Army for 4 years and training in military occupational specialty (MOS) 63H
(Track Vehicle Repairer).

4.  Between January 1983 and March 1985, the applicant was counseled for
various reasons to include:  Failure to go to his appointed place of duty
at the time prescribed on numerous occasions; being disrespectful in
language towards a commissioned officer; failure to follow instructions;
for being in the improper uniform; and for poor conduct and performance.

5.  On 9 December 1983, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ) was imposed against
the applicant for willfully disobeying a lawful order given by a
noncommissioned officer.  His punishment included a forfeiture of $50.00
pay for 1 month (suspended) and 7 days of extra duty and restriction.  On
16 February 1984, the suspended portion of the punishment was vacated after
he operated a privately owned vehicle (POV) without a valid United States
Army Europe (USAREUR) driver's license.

6.  On 17 February 1984, NJP was imposed against the applicant for
violating a general lawful regulation by operating a POV without a valid
USAREUR POV operator's license on 27 January 1984.  His punishment included
7 days of extra duty and 14 days of restriction.

7.  On 17 July 1984, NJP was imposed against the applicant for being absent
without leave (AWOL) from his unit from 6-9 July 1984.  His punishment
included reduction from pay grade E-3 to pay grade E-2, a forfeiture of
$155.00 pay for
1 month and 14 days of extra duty.

8.  On 27 January 1985, the applicant was determined to be physically
qualified for separation under the provisions of chapter 13, Army
Regulation 635-200.

9.  On 25 February 1985, the applicant's commander officially notified him
that he was being recommended for discharge under the provisions of chapter
13, Army Regulation 635-200, for unsatisfactory performance.  On the same
date, the applicant acknowledged notification of the commander’s intent to
separate him and consulted with legal counsel concerning the basis for the
contemplated separation action and the rights available to him.  He
declined to submit a statement in his own behalf.  He was not entitled to
consideration of his case by a board of officers.

10.  On 12 March 1985, the applicant was found to be mentally qualified for
separation under the provisions of chapter 13, Army Regulation 635-200, due
to unsatisfactory performance.

11.  On 13 March 1985, the applicant's commander recommended that the
applicant be separated under the provisions of chapter 13, Army Regulation
635-200 for unsatisfactory performance.  The commander cited the above
NJP's and counseling statements as the bases for the recommendation.  The
commander stated that he did not believe a rehabilitative transfer would
help the applicant develop into the soldier that is desired in today's
Army.

12.  On 13 March 1985, the appropriate authority waived further
rehabilitative requirements, approved the separation recommendation and
directed that the applicant be issuance a GD.



13.  The applicant's DD Form 214 shows that on 22 March 1985, he was
discharged under the provisions of chapter 13, Army Regulation 635-200, for
unsatisfactory performance with a GD.  He had completed 2 years, 4 months
and 7 days of creditable active military service.  No lost time is shown.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory soldier.  Army policy states that a
GD, under honorable conditions is normally considered appropriate, but an
HD may be granted in meritorious cases.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings were conducted in accordance with
law and regulations applicable at the time.  Both the characterization of
service and the narrative reason for separation are commensurate with the
applicant’s overall record of military service.

2.  The applicant has established no basis for changing the
characterization of his service.

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

__jlp___  __le____  __dja___  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.



                                  Jennifer L. Prater
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105253                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |19850322                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 13                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.4900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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