RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 November 2005
      DOCKET NUMBER:  AR20050004137


      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. Lisa O. Guion                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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, that his general, under honorable
conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was not given the proper drug
and alcohol counseling or sufficient time to lose 20 pounds prior to being
processed for discharge.  He also states that he has suffered for nearly 20
years with the GD hanging over his head and wishes to start a new family
and receive a home loan from the Department of Veterans Affairs (VA) when
he is released from incarceration.  He also states that he comes from an
all military family and would appreciate favorable consideration of his
request.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that
occurred on 25 October 1985.  The application submitted in this case was
received on 21 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 that he enlisted in the Regular Army and
entered active duty on 14 March 1984.  He was trained in, awarded, and
served in military occupational specialty (MOS) 57H (Cargo Specialist).

4.  The applicant’s Enlisted Qualification Record (DA Form 20) confirms, in
Item 33 (Appointments & Reductions), that he was advanced to private first
class (PFC/E-3) on 1 February 1985, and that this was the highest rank he
attained while serving on active duty.  It also shows that he was reduced
to the rank of private two (PV2/E-2) on 16 August 1985, and that this was
the grade he held at the time of his discharge.

5.  The applicant’s record reveals a disciplinary history that includes his
acceptance of nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on the following three
dates for the offense(s) indicated:  17 April 1985, for leaving physical
training formation without proper authority; 16 August 1985, for wrongful
use of marijuana; and 20 September 1985, for being drunk and disorderly.

6.  On 10 October 1985, the applicant’s unit commander recommended he be
separated under the provisions of chapter 13, Army Regulation 635-200, by
reason of unsatisfactory performance.  The reason cited for the action was
the applicant’s wrongful use of marijuana, and established pattern of being
late and absent from his place of duty.

7.  On 11 October 1985, the applicant consulted with legal counsel and was
advised of the basis for his contemplated separation, its effects, the
rights available to him, and the effect of a waiver of his rights.
Subsequent to this counseling, the applicant elected to waive his right to
consideration of his case by a board of officers, his right to a personal
appearance before a board of officers, and his right to representation by
counsel.  The applicant submitted a statement indicating that he previously
received two Article 15's and did the punishment imposed.  He requested
additional rehabilitation, indicating that the problems that he had were
correctable and asked for a second chance to complete his military career.

8.  On 17 October 1985, the separation authority approved the applicant’s
separation and directed that he receive a GD.  On 25 October 1985, the
applicant was separated accordingly.  The separation document (DD Form 214)
he was issued confirms he was separated under the provisions of Chapter 13,
Army Regulation 635-200, for unsatisfactory performance.  It also shows
that at the time of his discharge, he had completed 1 years, 7 months, and
12 days of creditable active military service.  The applicant authenticated
the separation document with his signature on the date of his discharge.

9.  On 10 October 1989, the Army Discharge Review Board (ADRB), after a
comprehensive review of his case, denied the applicant’s request for an
upgrade of his discharge.  The ADRB found the applicant’s discharge was
both proper and equitable.

10.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members found to be unqualified for further
military service because of unsatisfactory performance.
11.  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 (Army Regulation 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’s contention that his GD should be upgraded to a HD
because he was not given proper drug and alcohol counseling or sufficient
time to drop his excess weight has been carefully considered.  However,
these factors are not sufficiently mitigating to support granting the
requested relief.

2.  The evidence of record clearly shows the applicant accepted NJP under
the provisions of Article 15 of the UCMJ on three separate occasions.  This
disciplinary history clearly diminished the quality of his service below
that meriting a fully honorable discharge, and supported his separation for
unsatisfactory performance.

3.  The evidence of record confirms that the applicant’s discharge
processing was accomplished in accordance with the regulation in effect at
the time.  All requirements of law and regulation were met, the rights of
the applicant were fully protected throughout the separation process.
Further, his GD accurately reflects the overall quality of his 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 exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 10 October 1989.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 9 October 1992.  However, he failed to
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 file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MKP_  __LDS  __  ___MJF _  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.




            ___Margaret K. Patterson____
                    CHAIRPERSON



INDEX

|CASE ID                 |AR20050004137                           |
|SUFFIX                  |                                        |
|RECON                   |NA                                      |
|DATE BOARDED            |2005/11/10                              |
|TYPE OF DISCHARGE       |General Discharge                       |
|DATE OF DISCHARGE       |1985/10/25                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Unsatisfactory Performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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