RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 November 2005
      DOCKET NUMBER:  AR20050003872


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Eric Anderson                 |     |Member               |
|     |Mr. Joe Schroeder                 |     |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
an honorable discharge.

2.  The applicant states that his discharge should be upgraded because he
did nothing wrong.  He performed his physical training (PT) without any
problems, participated in his unit cook competitions, and performed his job
well.  He received affiliation awards for knowing his job and received a
certificate for his job performance.  He received a certificate of
achievement award for end of cycle testing.  He requested to join the
Reserve and if he knew what it was then, he would have remained in and not
signed his discharge documents.  He felt that no one covered that with him
at his young age.  He now wants to become a police officer for the city of
Austin, Texas.  He wants to make a difference in peoples' lives and will
give his best in that line of duty.  He has finished college with a
Bachelor of Science degree in criminal justice administration.  He now begs
this Board to upgrade his discharge to honorable so he can fulfill his life
dreams.  He received an honorable discharge from the Army Reserve on
21 December 1993. He would give his life for this country today if he was
called to duty.

3.  The applicant provides a copy of a certificate of
merit/training/achievement, and affiliation that were awarded to him, in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 November 1987, the date of his discharge.  The application
submitted in this case is dated 7 March 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 he entered active duty on
13 August 1986, as a food service specialist (94B), in the pay grade of E-
3, for a period of 3 years, with an established expiration of term of
service (ETS) of 12 August 1989.

4.  From 27 February to 26 April 1987, the applicant received six
counseling statements.  He was counseled for his job performance, for his
failure to report to duty, and his negative attitude towards the Army and
his superiors.  He was advised that he was a candidate for separation under
the provisions of Army Regulation 635-200 and that he may be denied
reenlistment.

5.  On 3 April and 8 July 1987, the applicant received nonjudicial
punishment under Article 15, Uniform Code of Military Justice (UCMJ), for
being disrespectful in deportment towards a senior noncommissioned officer
and for his failure to go to his prescribed appointed place of duty, on
five occasions.  His punishment consisted of a reduction to pay grade E-2
(suspended), forfeitures of pay, and correctional custody for 7 days.  On
8 August 1987, the punishment of correctional custody was mitigated to
extra duty for 7 days.

6.  The applicant underwent a mental status evaluation on 8 September 1987.
 The examination determined that he had the mental capacity to understand
and participate in separation proceedings.  It indicated that his behavior
was immature and impulsive, that he was alert, oriented, and that his
thought process was clear.  The remarks sections of this evaluation
indicated that, based on his unit reports of erratic duty performance,
history of absent without leave (AWOL), continuous infraction of rules, and
urgent desire for discharge resulting from his disgruntlement with military
contract, it was apparent that he would not develop sufficiently to
participate in further training or become a satisfactory Soldier.  It also
indicated that the applicant would be a disruptive influence in present and
future duty assignments and his retention would have an adverse impact on
discipline, good order, and morale of the unit.  It was highly unlikely
that efforts to rehabilitate, treat, transfer or reclassify him would be
successful, within a reasonable amount of time.  The division psychiatrist
strongly recommended that the applicant be considered for an expeditious
handling of his administrative discharge under the provisions of Chapter 13
by the command as planned.  The applicant was cleared for any
administrative action deemed appropriate by his commander.

7.  The applicant underwent a separation medical examination on 8 September
1987.  He was found to be in good health and was qualified for separation
with no personality disorder cited.  The examination recommended separation
under the provisions of Army Regulation 635-200, chapter 13.

8.  On 13 October 1987, the applicant’s commander initiated action to
separate the applicant from the service under the provisions of AR 635-200,
chapter 13, for unsatisfactory performance.  He based his recommendation on
the applicant's unsatisfactory performance.

9.  On 29 October 1987, the commander submitted his recommendation to
separate the applicant under the provisions of Army Regulation 635-200,
chapter 13, for unsatisfactory performance prior to his ETS.

10.  On 29 October 1987, the separation authority approved the
recommendation for discharge and directed that he be furnished a GD
Certificate.  The applicant was discharged on 12 November 1987.  He had a
total of 1 year and 3 months of creditable service.

11.  After a break in service, the applicant enlisted in the Texas Army
National Guard (TXARNG) on 28 November 1989, in the pay grade of E-3.  He
was promoted to pay grade E-4 on 25 May 1990.  He continued to serve until
he was honorably discharged from the TXARNG on 5 February 1993 and was
transferred to the USAR Control Group (Annual Training).  He was honorably
discharged from the USAR on 21 December 1993.

12.  The certificates provided by the applicant attests to his recognition
of individual contribution to the improvement of food service operations;
outstanding contributions to the Army Food Service Program; demonstration
in exceptional ability and proficiency during his end of cycle testing, by
scoring a perfect task score of 30 out of 30 tasks tested; successful
completion of the equipment records and parts specialist course; and for
his formal affiliation with the Quartermaster Corps Regiment, one of the
original branches of the United States Army.

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 18 April 1988.  The ADRB determined that his
discharge was proper and equitable and denied his request on 12 October
1988.

14.  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.


15.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the 3 year limit on filing to the
Army Board for Correction of Military Records (ABCMR) should commence on
the date of final action by the ADRB.  In complying with this decision, the
ABCMR has adopted the broader policy of calculating the 3-year time limit
from the date of exhaustion in any case where a lower level administrative
remedy is utilized.

16.  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’s discharge proceedings appear to have been conducted in
accordance with law and regulations applicable at the time of his
separation.

2.  The type of separation directed and the reasons for that separation
were appropriate considering all of the facts of the case.

3.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided evidence sufficient to mitigate the
character of his discharge.

4.  The evidence shows that the applicant received many outstanding
accolades and comments for his performance as indicated by his
certificates.  However, these certificates are not sufficiently mitigating
to warrant an upgrade of his discharge to honorable.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 12 October 1988.
As a result, the time for the applicant to file a request for correction or
any error or injustice to this Board expired on 11 October 1991.  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

__JRS__  __ENA___  __TAP __  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.




                                  _______Thomas Pagan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003872                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051122                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19871112                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 13                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]