RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        30 August 2005
      DOCKET NUMBER:  AR20050004334


      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. Antoinette Farley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 he was very young and stupid, but has since grown
up to regret the things he did.  He adds that he has changed greatly since
his discharge from active duty.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 May 1981, the date of his discharge.  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 military records are incomplete; however, the available
records show that he enlisted in the Regular Army on 24 August 1979.  After
completion of basic and advanced individual training, he was awarded
military occupational specialty 63F10 (Recovery Specialist) and was
assigned to the 2nd Battalion, 30th Infantry of the 3rd Infantry Division
in Germany for duty.

4.  On 21 February 1980, nonjudicial punishment was imposed against the
applicant for being disrespectful and willfully disobeying a lawful order
from a superior noncommissioned officer.  His punishment consisted of
forfeiture of $100.00 per month for two months, suspended for 180 days or
until 15 August 1980.



5.  On 10 April 1980, the applicant was listed as being absent without
leave (AWOL).  On 11 April 1980, the applicant was returned to a present
for duty status.

6.  On 30 May 1980, nonjudicial punishment was imposed against the
applicant for wrongfully and unlawfully making false statements.  His
punishment consisted of performing extra duty and restriction for 45 days
(15 days suspended for 180 days).

7.  On 31 October 1980, the applicant again was listed as being AWOL.

8.  On 4 November 1980, the applicant was apprehended by the military
authorities and placed in military confinement.

9.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions),
dated 12 November 1980, shows that the applicant was pending a general
court-martial for writing $2,400.00 worth of bad checks and AWOL.

10.  On 12 January 1981, the applicant was returned from overseas and
was placed in confinement as a rehabilitation trainee with the 5th Unit
of the 3d Battalion at Fort Riley, Kansas.

11.  A DA Form 4187 (Personnel Action) shows that on 13 March 1981, the
applicant's status was changed from being confined by military authorities
at the U.S. Army Retraining Brigade, Fort Riley, Kansas, to present for
duty.

12.  On 2 April 1981, nonjudicial punishment was imposed against the
applicant for failing to obey a lawful order.  The punishment consisted of
extra duty and restriction for 7 days.

13.  The applicant's military records contain a memorandum, dated 6
February 1981, from Headquarters, 3d Infantry Division Office of the Staff
Judge Advocate, which shows that the applicant received a General Court-
Martial.  The memorandum also showed that the applicant was found guilty
for writing 11 bad checks on insufficient funds, AWOL for the period 31
October 1980 through 3 November 1980 and breaking restriction.  The
applicant was sentenced to forfeiture of $334.00 dollars, pay per month for
six months and confinement at hard labor for six months.



14.  On 27 April 1981, a recommendation for discharge of the applicant
under the provisions of Army Regulation 635-200, paragraph 14-33, for
misconduct because of frequent incidents of a discreditable nature with
civil or military authorities was submitted to the commander of the 1st
Battalion of the U.S. Army Retraining Brigade at Fort Riley, Kansas.  This
recommendation stated that the applicant's conduct and efficiency is
unsatisfactory.  It further stated that the applicant received considerable
counseling by the social workers, leadership team and unit cadre, but did
not respond favorably to his counseling nor duties given him.  Therefore,
the applicant did not meet the criteria for further rehabilitation
attempts.

15.  On 30 April 1981, the applicant consulted with counsel in regard to
separation under the provisions of Army Regulation 635-200, paragraph 14-
33, for misconduct because of frequent incidents of a discreditable nature
with civil or military authorities.  He elected not to submit a statement
in his own behalf.

16.  Evidence of record shows that the applicant underwent a medical
examination at Irwin Army Hospital, Fort Riley, Kansas, in conjunction with
separation processing.  The applicant's medical examination showed that
there had been no significant change in his medical condition.

17.  On 7 May 1981, the separation authority directed that the applicant
be discharged under the provisions of Army Regulation 635-200, paragraph
14-33, for misconduct because of frequent incidents of a discreditable
nature with civil or military authorities and furnished an under other
than honorable conditions certificate.  Further rehabilitation
requirements were waived pursuant to paragraph 13-8, AR 635-200.

18.  The applicant's DD Form 214 (Report of Separation from Active Duty)
shows that he was discharged on 8 May 1981, under the provisions of
paragraph
14-33b(1) of Army Regulation 635-200, for misconduct and issued an Under
Other Than Honorable Conditions Discharge Certificate.  He had served 1
year, 4 months and 2 days of total active service and had 128 days of lost
time due to AWOL and confinement.

19.  There are no records to show that the applicant applied to the Army
Discharge Review Board for review of his discharge case within its statute
of limitations.


20.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel for the convenience of
the government.  Paragraph 14-33b(1) states, in pertinent part, that
members involved in frequent
incidents of a discreditable nature with civil or military authorities were
subject to separation for misconduct.  A discharge under other than
honorable conditions is normally considered appropriate.

21.  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.

22.  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.

23.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 May 1984.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions
discharge should be upgraded.

2.  In the absence of evidence to the contrary, it is presumed that the
discharge proceedings were conducted in accordance with law and regulations
applicable at the time.  The character of the discharge is commensurate
with his overall record.

3.  Review of the applicant’s record of service shows that he had various
incidents of misconduct, 3 nonjudicial punishments, 1 court-martial and 128
days of lost time due to AWOL and confinement.  This misconduct and lost
time also renders his service unsatisfactory.  Therefore, his quality of
service did not meet the standards of acceptable conduct and performance of
duty for Army personnel.  As a result, there is insufficient basis for
upgrading his discharge to a general or honorable discharge.

4.  The applicant contends that he was very young and stupid, but has since
grown up to regret the things he did and claims to have changed greatly
since his discharge.

5.  Records indicate that the applicant was 19 years old at the time his
discharge.  However, there is no evidence that indicates that the applicant
was any less mature than other soldiers of the same age who successfully
completed military service.  The applicant has provided no evidence to
substantiate his claim of having changed his behavior.  Further, these
factors do not outweigh the serious nature of the applicant's offenses and
therefore are not sufficiently mitigating to warrant relief.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 May 1981; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
7 May 1984.  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 file
in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_PMS____  __LH__   _YM_ ___  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.




                                     ___Paul M. Smith_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050004334                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |                                        |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14-33b(1)                |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |



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