RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050005987


      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. James Hise                    |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms Jeanette R. 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 general discharge (GD) be upgraded to
an honorable discharge.

2.  The applicant states that he was discharged because he was performing
his duties and that it has been almost 20 years since his discharge.

3.  The applicant provides no documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 22 September 1988, the date of his discharge.  The application
submitted in this case is dated 5 April 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
30 December 1985 for a period of 3 years, for training as a Power-
Generation Equipment Repairer (52D10), with an established expiration of
term of service (ETS) of 29 December 1988.  He was advanced to specialist
(SP4/E-4) effective 29 February 1988.

4.  Between 17 February 1987 and 12 August 1988, he received nonjudicial
punishment on three occasions under Article 15, Uniform Code of Military
Justice (UCMJ), for failure to go to his appointed place of duty, being
absent without leave (AWOL) from 30 June to 2 July 1988, and for breaking
restriction.  His punishments consisted of a reduction in pay grade to E-3
and E-2, forfeitures of pay, correctional custody for 7 days, and
restriction and extra duties.

5.  From 7 August 1987 to 7 July 1988, the applicant received seven
counseling statements and a letter of indebtedness.  He was counseled for
several failures to repairs, writing bad checks, and indebtedness.



6.  The applicant underwent a separation medical examination on 15 July
1988.   He was qualified for separation.

7.  On 20 July 1988, the applicant’s commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He
based his recommendation on the applicant's unsatisfactory performance and
unsuitability for further military service.   After consulting with
counsel, the applicant elected to exercise his rights to counsel and
requested copies of documents that would be sent to the separation
authority supporting the proposed separation action.  He also elected not
to submit a statement in his own behalf

8.  On 29 July 1988, the commander submitted his recommendation to separate
the applicant under the provisions of AR 635-200, chapter 13, prior to his
ETS.

9.  On 23 August 1988, the separation authority approved the recommendation
for the applicant's discharge and directed that he be furnished a GD
certificate.  The applicant was discharged on 22 September 1988, in the pay
grade of E-2.  He had a total of 2 years, 8 months, and 23 days of
creditable service.

10.  There is no evidence that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within its 15-year statute of
limitations.

11.  Army Regulation 635-200 set forth the requirements and procedures for
administrative discharges of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, provided for the separation of Soldiers
due to their unsatisfactory performance when in the commander’s judgment
the individual would not become a satisfactory Soldier; retention would
have an adverse impact on military discipline, good order and morale; the
service member would be a disruptive influence in the future; the basis for
separation would continue or recur; and/or the ability of the service
member to perform effectively in the future, including potential for
advancement or leadership, was unlikely.  Service of Soldiers separated
because of unsatisfactory performance under this regulation would be
characterized as honorable or under honorable conditions.

12.  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 applicant contends that he was discharged because he was performing
his duties; however, the evidence shows that he was separated for
unsatisfactory performance and was found unsuitable for further military
service.

5.  It is noted that it has been over 17 years or more since he received
his GD, instead of the alleged 20 years stated by the applicant, and there
is no evidence to show that he attempted to or applied for an upgrade of
his discharge to the ADRB within its 15-year statute of limitations.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 September 1988; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 September 1991.  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                 |AR20050005987                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19880922                                |
|DISCHARGE AUTHORITY     |AR .635-200, chapter 13                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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