RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 October 2005
      DOCKET NUMBER:  AR20050001276


      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. Eric S. Moore                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Ms. Laverne V. Berry              |     |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 discharge (GD) be upgraded to a
honorable discharge.

2.  The applicant states that he was told after one year he could request
upgrade of discharge.

3.  The applicant provides no evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 6 August 1984, that date of his separation from active duty.
The application submitted in this case is dated 13 January 2005.

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 limitations 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 military records show that he entered active duty on 13
April 1983 for a period of 3 years.  He successfully completed basic
training and advanced individual training and was awarded the military
occupational specialty (MOS) 94B (Food Service Specialist).  The highest
rank he attained while serving on active duty was private first class.

4.  On 27 May 1984, the applicant was arrested by military police and
charged with the failure to obey a general order, possession of a
prohibited item (beer) and dereliction of duty (unsecured government
property).

5.  On 19 June 1984, the applicant was arrested for aggravated robbery
while in the possession of a .25 cal pistol.

6.  On 22 June 1984, the applicant was notified by his unit commander of
the intent to initiate action to separate him from the Army under the
provisions of Chapter 13, Army Regulation 635-200, for unsatisfactory
performance because of apathy, defective attitudes, or inability to expend
effort constructively.
7.  The applicant consulted with legal counsel and, after being advised of
the basis for the contemplated separation actions and its effects, he
completed an election of rights by waiving his right to counsel.  In
connection with this processing, he elected not to submit a statement in
his own behalf.

8.  On 23 July 1984, the appropriate authority approved the applicant’s
separation and directed that he be discharged by reason of unsatisfactory
performance under the provisions of chapter 13, Army Regulation 635-200,
and that he receive a GD.  On 6 August 1984, the applicant was discharged
accordingly.  He completed a total of 1 year, 3 months, and 22 days of
active military service.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

10.  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.

11.  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 his general discharge should be upgraded to
a honorable discharge.

2.  The applicant states that he was told that he could upgrade his
discharge after one year, but there are no provisions that will
automatically authorize the upgrade of a discharge.

3.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  The applicant's record of service included arrest for aggravated
robbery, failing to obey a general order, and failing to secure a
government property.  As a result, his quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 6 August 1984; therefore, the time for the
applicant to file a request for correction of any injustice expired on 5
August 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

___rtd___  ___lvb___  ___cg___  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.




                                  _____ Curtis Greenway________
                                        CHAIRPERSON











                                    INDEX

|CASE ID                 |AR20050001276                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/10/06                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1984/08/06                              |
|DISCHARGE AUTHORITY     |AR 635-200  . . . . .                   |
|DISCHARGE REASON        |Chapter 13, Unsatisfactory Performance  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |MR CHUN                                 |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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