RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050004678


      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. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 records be corrected by upgrading his
discharge to honorable.

2.  The applicant states that he was injured and had a profile; however,
his commander went against his profile and gave him a general discharge.

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 26 July 1979.  The application submitted in this case is dated
16 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 records indicate he enlisted and entered active duty on

18 January 1977, for a period of 3 years.

4.  On 5 July 1978, the applicant accepted punishment under the provisions
of Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful
possession of marihuana.  His punishments included reduction (suspended),
forfeiture of pay (suspended), and 7 days confinement at a correctional
control facility.

5.  On 30 August 1978, he accepted punishment under the provisions of
Article 15, UCMJ for disobeying a lawful order from a superior
noncommissioned officer. His punishment was reduction, forfeiture of pay,
and confinement.

6.  On 8 June 1979, he accepted punishment under the provisions of Article
15, UCMJ for disobeying a lawful order from a superior noncommissioned
officer and for being disrespectful in language to a superior
noncommissioned officer.  His punishment was reduction, forfeiture of pay,
and restriction.
7.  On 19 June 1979, the applicant was counseled for repeated haircut
violations, poor uniform appearance on a repeated basis, and spotty job
performance.  He was informed that unless he took positive actions to
correct his deficiencies consideration would be given to separating him
from the service.  He acknowledged that he understood that if he continued
to behave and perform duty in an unacceptable manner he could be separated
from the service under less than honorable conditions.

8.  On 10 July 1979, he accepted punishment under the provisions of Article
15, UCMJ for being disrespectful in language toward two superior
noncommissioned officers.  His punishment was restriction, a forfeiture of
pay, extra duty, and reduction to pay grade E-1.

9.  On 23 July 1979, the applicant was notified by his commander that he
was initiating action to separate him under the provisions of Army
Regulation 635-200, Chapter 5, paragraph 5-31 (Expeditious Discharge
Program).  The reason for his proposed action was the applicant’s marginal
duty performance, lack of promotion potential, lack of adaptability to
military life, and his apathetic attitude toward military duties.

10.  On 23 July 1979, a medical examination cleared the applicant for
separation.

11.  On 23 July 1979, the applicant acknowledged notification by his
commander of his intent to separate him under the provisions of Army
Regulation 635-200, paragraph 5-31.  He voluntarily consented to the
separation.  He submitted no statements in his own behalf, and acknowledged
that if his service was characterized as less than honorable he understood
he could expect to encounter substantial prejudice in civilian life.

12.  On 23 July 1979, the appropriate separation authority approved the
separation request and directed that the applicant be released from active
duty for failure to meet acceptable standards for continued military
service with a general discharge.

13.  On 26 July 1979, the applicant was released from active duty under the
provisions of Army Regulation 635-200, paragraph 5-31, for failure to
maintain acceptable standards for retention.  His service was characterized
as under honorable conditions.

14.  Army Regulation 635-200, paragraph 5-31, in effect at the time,
provided for the separation of members who had demonstrated that they could
not or would not meet acceptable standards required of enlisted personnel
because of poor attitude, lack of motivation, lack of self-discipline,
inability to adapt socially or emotionally, and failure to demonstrate
promotion potential.

15.  His records contain no evidence of any physical profiles.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The applicant's argument that he had a medical profile which was
ignored by his command is not supported by any evidence in the available
records.  The applicant had numerous punishments under the provisions of
Article 15, UCMJ, and was counseled on the possibility of being separated
if his deficiencies were not corrected.  The actions by the Army in this
case were proper, and there is no doubt to be resolved in favor of the
applicant.

3.  In view of the foregoing, there is no basis for granting the
applicant's request.

4.  In order to justify correction of a military record the applicant must
show, or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy that requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 26 July 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
25 July 1982.  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

__JH____  __RB ___  __JM ___  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.




                                  _______James Hise_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004678                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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