RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          16 December 2004
      DOCKET NUMBER:  AR2004105876


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Yolanda Maldonado             |     |Chairperson          |
|     |Mr. Ronald J. Weaver              |     |Member               |
|     |Ms. Maribeth Love                 |     |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, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant provides no specific argument in support of his request.


3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 27 May 1987.  The application submitted in this case is
dated
15 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’s record shows that he enlisted in the Regular Army and
entered active duty on 18 October 1984.  He was trained in and awarded
military occupational specialty (MOS) 19K (Abrams Armor Crewman) and the
highest rank he attained while serving on active duty was private first
class (PFC).  The record further shows that during his active duty tenure,
he earned the Army Service Ribbon, Overseas Service Ribbon, Marksman
Qualification Badge with Rifle Bar and Hand Grenade 2nd Class Qualification
Badge.  The record documents no acts of valor, significant achievement or
service warranting special recognition.

4.  On 28 February 1986, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ), for stealing 3 Bank America Traveler’s Checks from another
Soldier.  The resultant punishment included a reduction to private two
(PV2).

5.  Between 27 January and 21 April 1987, the applicant was formally
counseled on six separate occasions for conduct and performance related
issues that included unsatisfactory performance of his duties.
6.  On 10 March 1987, the applicant accepted NJP under Article 15 of the
UCMJ, for wrongfully using marijuana.  The resultant punishment included a
reduction to private one (PV1).

7.  On 21 April 1987, his unit commander notified the applicant that he was
initiating action to separate him under the provisions of chapter 13, Army
Regulation 635-200, by reason of unsatisfactory performance.

8.  On 24 April 1987, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action for
unsatisfactory performance, its effects and of the rights available to him.
 Subsequent to this counseling, he waived his right to have his case
considered by an administrative separation board and he elected not to
submit statements in his own behalf.

9.  On 13 May 1987, the separation authority approved the applicant’s
separation and directed he receive a GD.  On 27 May 1987, the applicant was
discharged accordingly.  The DD Form 214 he was issued confirms he
completed a total of
2 years, 7 months and 10 days of active military service.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-
year statute of limitations.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that all requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout his separation processing.  Further, his discharge
accurately reflects his overall record of service.

2.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 May 1987.  Therefore, the time for
him to file a request for correction of any error or injustice expired on
26 May 1990.  However, he 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

__YM___  __RJW__  __MBL___  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.




            ____Yolanda Maldonado__
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004105876                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/12/16                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1987/05/27                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsat Perf                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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