RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 January 2006
      DOCKET NUMBER:  AR20050002789


      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. Rosa M. Chandler              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Gerald J. Purcell             |     |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 under other than honorable conditions
(UOTHC) discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he needs his military benefits
for his children.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 February 1981.  The application submitted in this case is
dated 14 February 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.  On 4 February 1980, the applicant enlisted in the Regular Army for 3
years in pay grade E-1.  Following completion of all required military
training, he was awarded military occupational specialty (MOS) P15D (Lance
Missile Crewmember) and assigned to Germany on 25 June 1980.

4.  Between October and November 1980, the applicant was counseled numerous
times for various reasons, including failing to shave before formation; an
inappropriate attitude; being intoxicated to the point that he was unable
to perform his duties; an unprofessional physical appearance; failing to
attend formation for physical fitness training; behaving in an
unprofessional manner; disobeying lawful orders on multiple occasions;
indebtedness; using disrespectful language towards a noncommissioned
officer (NCO) and a commissioned officer; refusing to turn down his music;
and of refusing to go to his place of duty on more than one occasion.
5.  On 21 November 1980, nonjudicial punishment (NJP) under the provisions
of Article 15, Uniform Code of Military (UCMJ), was imposed against the
applicant
for willfully disobeying a lawful order given by a NCO and for failing to
go to his appointed place of duty at the time prescribed, both on 28 and 29
October and
on 3 November 1980; willfully disobeying a lawful command given by a
commissioned officer and a NCO; indulging in intoxicating liquor to the
point that he was incapacitated for the proper performance of his duties on

3 November 1980; and for willfully disobeying lawful orders given by a NCO
and a commissioned officer on 9 November 1980.  His punishment included a
forfeiture of $200.00 pay for 1 month and 30 days of extra duty and
restriction.

6.  On 5 December 1980, NJP under the provisions of Article 15, was imposed
against the applicant for failure to go to his appointed place of duty at
the time prescribed on 3 December 1980.  His punishment included 14 days of
extra duty and reduction from pay grade E-3 to pay grade E-2.

7.  On 8 December 1980, the applicant's unit commander officially notified
him that he was being recommended for an UOTHC discharge under the
provisions of chapter 14, Army Regulation 635-200, for misconduct-frequent
incidents of a discreditable nature with civil or military authorities.
The applicant was advised the bases for the recommendation were the above
offenses.  He had been counseled on seven separate occasions, paperwork had
been initiated to reclassify him because of nonreliablity and misbehavior,
and he had been reassigned to work for the first sergeant.  However, during
the following month, the incidents of misbehavior increased (doubled) and
became more serious in nature.  It was obvious that a rehabilitative
transfer was not in the best interest of the Army.  Therefore, no further
reassignment would be contemplated.

8.  On the same date, the applicant declined to consult with legal counsel
and acknowledged he had been advised of the nature of the contemplated
separation action and its effects.  He also acknowledged he had been
advised of the rights available to him.  He was not entitled to have an
administrative separation hearing by a board of officers.  He did not
submit a statement in his own behalf.

9.  On an unknown date, the unit commander recommended that the applicant
be separated under the provisions of chapter 14, Army Regulation 635-200
with an UOTHC discharge.

10.  On 18 December 1980, the applicant's battalion commander recommended
that the applicant be expeditiously discharge.  He cited the bases for the
recommendation was that he believed the applicant had the necessary
intelligence to make a contribution to the Army, but he was totally
unwilling to make any effort to meet the minimum standards.  During the
first months of his assignment to the battalion he experienced minor
scrapes with authority and blamed it on problems at home, alcohol, and an
inability to adjust to service in Germany.  His chain of command responded
by setting up appointments with a professional counselor, granting him
emergency leave when an aunt died, and by taking every possible step to
facilitate his development into a productive Soldier.  He continued to be
unreliable and ineffective.  He did not respond to counseling, his drinking
problems continued in spite of his chain of commands efforts to help him,
and he continued to annoy other Soldiers and test his chain of command.  He
had an adequate opportunity to become a Soldier.  He failed to meet the
Army's standards and expeditious discharge was warranted.  The battalion
commander recommended that the applicant be separated with an UOTHC
discharge because his service had been less than honorable.  He showed no
interest in serving honorably, he did not respond to military discipline,
and showed no interest in accepting military values.  Therefore, he should
not return to society with a discharge that would indicate he met the
conditions of his enlistment.

11.  On 6 February 1981, the approval authority waived further
rehabilitation efforts, approved the separation recommendation, and
directed that the applicant be separated for misconduct-frequent incidents
of a discreditable nature with civil or military authorities with an UOTHC
discharge.

12.  The applicant's DD Form 214 shows that on 25 February 1981, he was
separated with an UOTHC discharge under the provisions of chapter 14, Army
Regulation 635-200 for misconduct-frequent incidents of a discreditable
nature with civil or military authorities.  He had completed 1 year and 22
days of active service and he had no recorded lost time.

13.  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, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.  A discharge under other than
honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would have jeopardized his rights.  The type of discharge
directed and the reason for discharge are appropriate considering all the
facts of the case.  He has provided no evidence to the contrary.

2.  The applicant has established no basis for the upgrade of his
discharge.
The records supports that he was provided several opportunities to do the
right thing.  However, he was disruptive, insubordinate, disrespectful, and
simply rejected authority.

3.  Relief is not granted solely for the purpose of an individual obtaining
Veterans Administration (VA) benefits.  Further, eligibility for VA
benefits falls within the purview of the VA.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 February 1981; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 February 1984.  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

__ji____  __wfc___  __gjp___  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 Infante
                                  ______________________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002789                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060119                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |19810225                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 14                      |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0134                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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