RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        15 September 2005
      DOCKET NUMBER:  AR20050004131


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 his under other than honorable conditions
discharge be upgraded.

2.  The applicant states, in effect that he had serious psychological and
personal problems that were not considered by Army officials.

3.  The applicant provides his elimination proceeding for
misconduct/unsuitability and his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 29 February 1980.  The application submitted in this case
is dated 14 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 record shows he enlisted in the Regular Army and
entered active duty on 1 June 1979.  He was trained in, awarded, and served
in military occupational specialty (MOS) 63B10 (Power Generation and Wheel
Vehicle Mechanic).

4.  On 4 January 1980, the applicant was convicted by a special court-
martial of being AWOL on two separate occasions:  3 October 1979 through 18
October 1979 and 29 October 1979 through 3 November 1979.  His punishment
consisted of hard labor without confinement for 30 days and reduction to
the grade of Private/E-1.

5.  On 7 February 1980, the applicant was convicted by a special court-
martial of being AWOL on two separate occasions:  7 January 1980 through 9
January 1980 and 17 January 1980 through 19 January 1980.  His punishment
consisted of confinement with hard labor for 30 days and forfeiture of
$100.00.
6.  On 21 January 1980, the applicant was counseled by the Aviation Group
Chaplain on his difficulties with military life.  The Chaplain stated that
the applicant indicated to him that he planned to continue to go AWOL until
the Army realized that he did not intend to make any effort to adjust to
the military.  The Chaplain further stated that the applicant seemed rash
and immature and acted without counting the full cost of his behavior.  The
Chaplain recommended that the applicant be eliminated from the Army under
the provisions of “AR 614-200,” chapter 5 [sic, AR 635-200].

7.  On 13 February 1980, the unit commander notified the applicant of the
proposed discharge action for misconduct under the provisions of Army
Regulation 635-200, chapter 14.  He cited the applicant’s record of
indiscipline as the reason for separation.  The commander did not specify
the characterization of the discharge in his notice to the applicant.

8.  On 14 February 1980, the applicant consulted with military counsel.
After being advised of the basis for the contemplated separation, its
effects and the rights available to him, he waived his right to
consideration of his case by a board of officers, to personal appearance
before a board of officers, and to counsel.  He also elected not to submit
statements on his behalf.

9.  The applicant acknowledged that he may encounter substantial prejudice
in civilian life if a general discharge under honorable conditions is
issued.  He further acknowledged that as a result of issuance of a
discharge under other than honorable conditions, he may be ineligible for
many or all benefits as a veteran under both Federal and State laws and
that he may encounter substantial prejudice in civilian life.

10.  On 19 February 1980, the applicant signed a statement declining a
separation medical examination.

11.  On 22 February 1980, the unit commander forwarded the recommendation
for the applicant's separation under the provisions of Army Regulation 635-
200, chapter 14, misconduct, to the special court-martial (SPCM) convening
authority. The SPCM authority recommended separation for misconduct.

12.  On 28 February 1980, the major general in command at the 101st
Airborne Division, Fort Campbell, Kentucky, approved the request for waiver
of rehabilitative transfer.  Additionally, he directed the applicant’s
discharge under the provisions of paragraph 14-33b(1) and 14-38e, Army
Regulation 635-200 with an Under Other Than Honorable Discharge
Certificate.

13.  The applicant's DD Form 214 (Armed Forces of the United States Report
of Transfer or Discharge) shows that the applicant was discharged under
other than honorable conditions on 29 February 1980.  The narrative reason
for separation is listed as frequent incidents of discreditable nature with
civil or military authorities.  The applicant had 1 year, 7 months, and 15
days of creditable service.

14.  On 16 May 1980, the applicant appealed to the Army Discharge Review
Board (ADRB) to upgrade his discharge.  On 16 October 1981, the ADRB denied
the applicant’s request for a discharge upgrade.  The ADRB unanimously
determined that the discharge was both proper and equitable.

15.  The applicant was notified of the ADRB decision by a letter dated
            3 November 1981.

16.  Army Regulation 635-200 provides the basic authority for the
separation of enlisted personnel.  Paragraph 5-31, Expeditious Discharge
Program (EDP), provides that members who have demonstrated that they cannot
or will not meet acceptable standards required of enlisted personnel in the
Army because of existence of one or more of the following conditions may be
separated when they have failed to respond to counseling.  Conditions
include:  poor attitude, lack of motivation, lack of self-discipline,
inability to adapt socially or emotionally, and failure to demonstrate
promotion potential.  The regulation further states that it was not
intended for commanders to use this provision as a substitute for
appropriate administrative action under chapters 13 and 14 of Army
Regulation 635-200.

17.  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.  Additionally, paragraph 14-39
states that an under other than honorable discharge certificate is normally
appropriate for a member who is discharged for acts and patterns of
misconduct.

18.  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.

19.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s separation specifically allows such
characterization.

20.  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 ADRB are by statute allowed 15 years to apply there,
and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8),
effectively shortens that filing period, has determined that the 3 year
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the Board 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his under other than honorable conditions
discharge be upgraded.  He contends that the Army officials were aware of
his psychological and personal problems, but failed to do anything.

2.  Evidence of record confirms that all requirements of law and regulation
were met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of service.

3.  The counseling statement provided by the Chaplain does not indicate
that he (chaplain) was made aware of the applicant’s psychological or
personal problems.  The Chaplain stated that the applicant was rash and
immature.  The Chaplain recommended the applicant be eliminated under the
provisions of chapter 5.  However, based upon the applicant’s record of
indiscipline, he did not meet the requirements for this type of discharge.

4.  The elimination proceedings verify that the applicant was afforded due
process.  He was also afforded the opportunity to present statements on his
behalf, but declined to do so.

5.  The applicant’s record shows that he elected not to have a medical
examination conducted prior to discharge.  Therefore, there is no evidence
to support the applicant’s contention that he had psychological and
personal problems and that Army officials were aware of these problems.

6.  The applicant’s record of service included two special courts-martial
for AWOLs.

7.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct and lost time also renders his service
unsatisfactory. Therefore, he is not entitled to either a general or an
honorable discharge.

8.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the Army Discharge Review
Board on 3 November 1981.  As a result, the time for the applicant to file
a request for correction of any error or injustice expired on 2 November
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

_CAK___  ___ENA__  _JNS_ __  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 N. Slone___
                                            CHAIRPERSON







                                    INDEX

|CASE ID                 |AR20050004131                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050915                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          | DENY                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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