RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 November 2004
      DOCKET NUMBER:  AR2004105344


      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. Robert J. McGowan             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |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 that his general under honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states that he became mentally ill while on active duty.
His mental illness was, in effect, the reason for his misconduct.

3.  The applicant provides:

      a.  A copy of a letter, dated 21 February 2003, from his brother, who
is a minister.

      b.  A 3-page report, dated 6 August 2002, from a psychiatrist.  The
report offers a diagnosis of "major depression, recurrent, moderate,
partially treated."

      c.  Copies of numerous documents from his Official Military Personnel
File (OMPF) consisting of counseling statements, records of nonjudicial
punishment, mental status evaluations, etc..

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 9 February 1984, the date of his general discharge.  The
application submitted in this case is dated 5 May 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 served honorably in the United States Air Force from
28 December 1970 to 5 December 1974.  He enlisted in the Regular Army from
27 August 1976 to 9 February 1984.  He achieved the rank of staff sergeant
(SSG/E-6).

4.  The applicant received a general discharge on 9 February 1984.  He had
7 years, 5 months, and 8 days of creditable active Federal service in the
Army and 3 years, 11 months, and 8 days of creditable active Federal
service in the Air Force.  He was separated by reason of "misconduct –
pattern of misconduct" with a general discharge.  His rank at separation
was private (PV1/E-1).  He had 5 days of lost time due to being absent
without leave (AWOL).

5.  The applicant was assigned to Fort Richardson, Alaska from January 1982
to his eventual discharge.  During this assignment, he demonstrated a poor
attitude and repeated acts of misconduct.  There are numerous counseling
statements in the applicant's records detailing his failure to report for
duty, his unacceptable performance of duty, his poor attitude, and being
AWOL.

6.  Although no longer contained in the record, the applicant apparently
was administered nonjudicial punishment (NJP) under Article 15, Uniform
Code of Military Justice, on/about 28 July 1983 for being AWOL from 20-24
July 1983.  The record does show that he was reduced from SSG to sergeant
(SGT) on 28 July 1983.

7.  The record does contain a copy of NJP administered to the applicant for
being AWOL from on/about 23 January 1984 to on/about 26 January 1984.  As
punishment, he was reduced from SGT to specialist (SP4/E-4).

8.  On 1 February 1984, the applicant was notified that he was being
considered for separation under the provisions of chapter 14, Army
Regulation 635-200 for misconduct.  The entire separation packet is no
longer available in the record, but the applicant received a physical
examination and a mental status evaluation and was found to be fit.
Psychologically, he was found:  to be mildly depressed, but capable of
participating in administrative proceedings against him; to be mentally
responsible; and to meet retention standards.

9.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, to include abuse of illegal drugs,
convictions by civil authorities and desertion or absence without leave.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impractical or unlikely to succeed.
Army policy states that a discharge under other than honorable conditions
is normally considered appropriate, but a general discharge under honorable
conditions or an honorable discharge may be granted.

10.  There is no record of the applicant petitioning the Army Discharge
Review Board (ADRB) seeking a discharge upgrade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was evaluated and found to be physically and mentally fit
for duty.  He was cleared for administrative separation action.

2.  The applicant was a noncommissioned officer – a staff sergeant – when
he began demonstrating various forms of misconduct.  He was counseled
repeatedly to no avail.  He was given NJP on two occasions, yet he failed
to correct his unprofessional behavior.  As a last resort, his chain of
command processed him for an administrative separation.

3.  Although the applicant's complete administrative separation packet is
no longer a part of the record, regularity is presumed in the discharge
process.

4.  The applicant has not shown, and the record does not support, that his
misconduct was in any way a function of mental illness.  The Army noted
that the applicant suffered from mild depression, but his depression was
not an unfitting condition.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 February 1984, the date of his
separation with a general discharge; therefore, the time for the applicant
to file a request for correction of any error or injustice expired on 8
February 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

__js____  __slp___  __phm___  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.



                                        John Slone
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105344                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041130                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19840209                                |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |A60.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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