RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 January 2005
      DOCKET NUMBER:  AR2004106346


      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:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms, Yolanda Maldonado             |     |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, an upgrade of his general, under
honorable conditions discharge (GD) to an honorable discharge (HD).

2.  The applicant states, in effect, that he suffered from a severe mental
illness at the time of his separation processing and was denied mental
hygiene assistance. He further states the misconduct of his unit commander
should be taken into account and his record of military service should not
be a reflection of the unjust actions of a few.

3.  The applicant provides a self-authored statement and the first page of
his separation medical examination (SF 88) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 9 August 1982.  The application submitted in this case was
received on 2 April 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 confirms he enlisted in the Regular Army and
entered active duty on 30 June 1980.  He was trained in, awarded and served
in military occupational specialty (MOS) 19E (Armor Crewmember).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) confirms,
in Item 18 (Appointments and Reduction) that the applicant was promoted to
the rank of private first class (PFC) on 30 June 1981 and this is the
highest rank he attained while serving on active duty.  This item also
shows that he was reduced to private one (PV1) for cause on 3 August 1981.

5.  Item 9 (Awards Decorations & Campaigns) of the applicant’s DA Form 2-1
shows that during his active duty tenure, he earned the Army Service Ribbon
and Sharpshooter Qualification Badge with Pistol Bar.

6.  The applicant’s record also confirms that he accepted nonjudicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on the following three separate occasions for the
offense(s) indicated:
3 August 1981, for being absent without leave (AWOL) from 1 through 15 July
1981;  26 October 1981, for being disrespectful in deportment toward a
superior noncommissioned officer (NCO) in the execution of his duties; and
10 March 1982, for being AWOL from 30 January through 8 February 1982.

7. On 10 March 1982, the applicant underwent a mental status evaluation.
The results of this evaluation were that the applicant suffered from no
significant mental illness, he was mentally responsible, able to
distinguish right from wrong, able to adhere to the right, had the metal
capacity to understand and participate in board proceedings and met
retention standards.

8.  On 10 March 1982, the applicant also underwent a separation medical
examination.  Only the clinical evaluation portion of the form is
available.  This portion of the examination confirms the applicant’s
psychiatric evaluation was determined to be normal.

9.  On 9 June 1982, the applicant was notified by his unit commander that
action was being taken to separate him under the provisions of paragraph 13-
11,
Army Regulation 635-200, by reason of unsuitability.

10.  On 14 June 1982, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects, the rights available to him and of the effect of a waiver of those
rights.  Subsequent to this counseling, he elected not to submit a
statement in his own behalf.

11.  The separation authority approved the applicant’s separation under the
provisions of paragraph 13-4(c)2, Army Regulation 635-200, by reason of
unsuitability (Apathy) and directed the applicant receive a GD.  On 9
August 1982, the applicant was discharged accordingly.
12.  The DD Form 214 issued to the applicant on the date of his separation,

9 August 1982, shows he completed a total of 2 years and 11 days of
creditable active military service and accrued 37 days of time lost due to
AWOL.  This document also confirms that during his tenure on active duty,
the applicant received the Army Service Ribbon and Sharpshooter
Qualification Badge with Pistol Bar.

13.  There is no indication in the record that the applicant applied to the
Army Discharge Review Board for an upgrade of his discharge within its 15-
year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided the authority for the separation of enlisted personnel for
unsuitability based on inaptitude, personality disorder, apathy, or
homosexual tendencies.  Members separated under these provisions could
receive either an HD or GD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that his discharge was unjust and was the
result of misconduct on the part of his commander and that he suffered from
a severe mental illness were carefully considered.  However, there is
insufficient evidence to support these claims.

2.  The evidence of record confirms that prior to his discharge, the
applicant underwent a mental status evaluation and separation medical
examination, which both found his psychiatric status was normal.

3.  The record further shows the applicant’s separation processing was
accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met and the rights of the applicant
were fully protected throughout the separation process.  Further, the
applicant’s discharge accurately reflects his overall record of
undistinguished service.

4.  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.
5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 August 1982.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 8 August 1985.  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__  ___FE___  __RTD __  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.




            ____Fred Eichorn_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106346                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/01/06                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1982/08/09                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsuitability - Apathy                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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