RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2004
      DOCKET NUMBER:  AR2004105281


      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. Prevolia Harper               |     |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 (under
honorable conditions) be upgraded to a fully honorable discharge.

2.  The applicant states he understood that after 6 months to 1 year, his
discharge would be upgraded from general to honorable if nothing else
happened with his record.

3.  The applicant further states that this oversight in correcting his
records is long overdue.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 April 1984, the date of his separation from the Army.  The
application submitted in this case is dated 2 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.  The applicant entered active duty on 12 November 1981 for a period of 3
years.  He successfully completed basic combat and individual advanced
training and was awarded the military occupational specialty 63T10 (Bradley
Fighting Vehicle Systems Mechanic).

4.  The applicant's records contain a DA Form 4856 (General Counseling
Form), dated 11 January 1984.  This form shows that the applicant was
counseled for failure to use a manual during troubleshooting.  He was also
counseled for failure to follow repair steps by using special
tools/equipment and lack of initiative upon completion of a task.



5.  On 9 February 1984, the applicant was counseled regarding his job
performance by a noncommissioned officer (NCO) in his command.  The NCO
noted that the applicant's job performance did not meet standards and that
he lacked motivation regarding assigned tasks.

6.  On 11 February 1984, the applicant was apprehended by the military
police for drunk and disorderly conduct and brought to the barracks.  The
NCO on staff duty wrote on a DA Form 1594 (Daily Staff Journal or Duty
Officer's Log) that the applicant was ordered to remain in the building;
however, he disobeyed the order and left without authorization.

7.  On 15 February 1984, the applicant was counseled for disobeying a
lawful order to remain in the barracks and creating a disturbance.  The
applicant was advised that his actions would not be tolerated by the chain
of command and he was advised to seek assistance from an Alcohol and Drug
Abuse counselor.

8.  On 7 March 1984, the applicant was counseled for failure to report to
formation.

9.  On 8 March 1984, the applicant received nonjudicial punishment (NJP)
under Article 15 of the Uniform Code of Military Justice (UCMJ) for
disobeying a lawful order from an NCO to remain in the barracks.  His
punishment consisted of reduction to pay grade E-1, 14 days of extra duty,
and restriction for 14 days to the company area, medical facility, and
dining facility.

10.  On 13 March 1984, the applicant received NJP under Article 15, UCMJ
for breaking restriction.  His punishment consisted of forfeiture of $139,
14 days of extra duty, and restriction for 14 days to company area, medical
facility, dining facility and the chapel.  The Article 15 also noted that
the applicant had three incidences of failure to go to his appointed place
of duty at the prescribed time in March 1984.

11.  On 5 April 1984, the applicant's commander signed a letter which
stated that he was denying the applicant's request for a rehabilitative
transfer because he felt that a transfer would not enhance the applicant's
ability to perform his job or change his personal behavior.  The commander
also stated that a transfer would not be in the best interest of the unit
or the Army.

12.  On 10 April 1984, the applicant was notified by his unit commander
that separation action was being initiated under provisions of chapter 13
of Army Regulation 635-200 (Personnel Separations) for unsatisfactory
performance.  The commander also recommended that the applicant receive a
general discharge under honorable conditions.
13.  On 13 April 1984, the applicant consulted with legal counsel and was
advised of his rights and the effects of a waiver of his rights.  The
applicant acknowledged that he waived consideration of his case by an
administrative separation board and did not provide statements on his own
behalf.

14.  The applicant signed his request for discharge which showed that he
was afforded the opportunity to speak with counsel; that he was advised
that he may be furnished a General Under Honorable Conditions Discharge
Certificate.

15.  On 23 April 1984, the approving authority at Fort Benning, Georgia
approved the recommendation for discharge and directed that the applicant's
discharge be characterized as general under honorable conditions.

16.  On 27 April 1984, the applicant was discharged from active duty and
issued a General Discharge Certificate based on chapter 13 of Army
Regulation
635-200.  Records show that the applicant had completed 2 years, 5 months,
and 16 days of active service.

17.  Item 25 (Separation Authority) of the applicant's DD Form 214 contains
the entry "AR [Army Regulation] 635-200, Chapter 13."

18.  Item 28 (Narrative Reason for Separation) of the applicant's DD Form
214 shows that the applicant was discharged for unsatisfactory performance.

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

20.  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.



21.  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 understood that, after 6 months to 1
year, his discharge would be upgraded from a general discharge to a fully
honorable discharge.

2.  The U.S. Army does not have, nor has ever had, a policy to
automatically upgrade discharges.  Each case is decided on its own merits
when an applicant requests a change in discharge.  Changes may be warranted
if the Board determines that the characterization of service or the reason
for discharge or both were improper.

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's military records do not show that he made any attempt
to challenge his Article 15's, provide statements on his own behalf; or
present any defense, mitigation or extenuating circumstances at the time
the events occurred.

6.  The applicant requests that his discharge be upgraded to honorable.
However, the applicant was discharged for unsatisfactory performance and
had two Article 15's, three instances of failure to go to his appointed
place of duty, and numerous counseling statements for various offenses.
Based on these facts, the applicant’s service did not meet the standards of
acceptable conduct and performance of duty for Army personnel which are
required for issuance of an honorable discharge.




7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 April 1984; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
26 April 1987.  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 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                 |AR2004107139                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19840427                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chap 13                     |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0500                                |
|2.                      |126.0300                                |
|3.                      |133.0300                                |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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