RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050006100


      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. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 discharge, under honorable
conditions be upgraded to an honorable discharge (HD).

2.  The applicant provides no specific argument in support of his request.
However, he does states, in effect that he was told that after 6 months to
a year from his discharge date that his discharge would be upgraded.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 26 February 1985.  The application submitted in this case
is dated
12 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 limitation 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 7 December 1983.  He was trained in and awarded
military occupational specialty (MOS) 11 B10 (Infantryman) and the highest
rank he attained while serving on active duty was pay grade E-2.  The
record further shows that during his active duty tenure, he earned the Army
Service Ribbon, the Army of Occupation Medal, Marksman Qualification Badge
with Rifle Bar and Expert, Hand Grenade.  The record documents no acts of
valor, significant achievement or service warranting special recognition.

4.  On 24 September 1984, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15 of the Uniform Code of Military
Justice (UCMJ), for not paying taxi fare in the amount of $24.80.  His
imposed punishment was a reduction to pay grade E-1, a forfeiture of
$298.00 pay per month for 2 months, 45 days restriction and extra duty.

5.  Between September and November 1984, the applicant was formally
counseled on five separate occasions for conduct and performance related
issues that included missing formation, being disrespectful to superiors,
failure to repair and unsatisfactory performance of his duties.

6.  On 28 November 1984, the applicant accepted an NJP for being
incapacitated for performance of duty due to the use of alcohol.  His
imposed punishment was a forfeiture of $444.00 pay per month for 2 months,
45 days restriction and extra duty.

7.  On 17 December 1984, his unit commander notified the applicant that he
was initiating action to separate him under the provisions of chapter 13,
Army Regulation 635-200, by reason of unsatisfactory performance with a
general discharge.

8.  On the same day, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action for
unsatisfactory performance, its effects and of the rights available to him.
 Subsequent to this counseling, he waived his right to have his case
considered by an administrative separation board and he elected not to
submit statements in his own behalf.

9.  On 21 December 1984, a Mental Status Evaluation and a physical
examination cleared the applicant for separation.

10.  On 1 February 1985, the separation authority approved the applicant’s
separation and directed he receive a GD.  On 26 February 1985, the
applicant was discharged under the provisions of Army Regulation 635-200,
chapter 13 with a discharge under honorable conditions.  The DD Form 214 he
was issued confirms he completed a total of 1 year, 2 months and 20 days of
active military service.

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsatisfactory
performance, and provides, in pertinent part, that commanders will separate
a member under this chapter when, in the commander's judgment, the member
will not develop sufficiently to participate satisfactorily in further
training and/or become a satisfactory soldier.

12.  On 15 July 1986, the Army Discharge Review Board (ADRB) determined
that the applicant’s discharge was proper and equitable and it voted to
deny the applicant’s request for an upgrade of his discharge.

13.  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 contentions that he was told that his discharge would
be upgraded within six months to a year of his separation were carefully
considered.  However, the Army does not have, nor has it ever had, a policy
to automatically upgrade discharges.  Each case is decided on its own
merits when an applicant submits an application to the ADRB or this Board
requesting a change in discharge.  Changes may be warranted if either Board
determines that the characterization of service or the reason for discharge
or both were improper or inequitable.

2.  The evidence of record confirms that all requirements of law and
regulation were met and that the rights of the applicant were fully
protected throughout his separation processing.  Further, his discharge
accurately reflects his overall record of service.

3.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 15 July 1986.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 14 July 1989.  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

__RTD __  __JBG __  __SWF__  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.




                                  ____ Richard T. Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006100                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051208                                |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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