RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 January 2006
      DOCKET NUMBER:  AR20050006728


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth Wright                |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. Qawiy Sabree                  |     |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 be upgraded to
honorable, and, in effect, that the narrative reason for separation be
changed.

2.  The applicant states his narrative reason for separation was not fair
due to the bias of the mess sergeant.  He contends he was accused of having
a mental illness; however, it was neither diagnosed nor treated.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 September 1982.  The application submitted in this case is
dated 24 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 enlisted on 26 February 1980 for a period of 3 years.  He
successfully completed basic training and advanced individual training in
military occupational specialty 94B (food service specialist).

4.  The applicant's Personnel Qualification Record, Part 1, prepared on 9
March 1982, shows his physical profile factors as 111111.

5.  On 18 June 1982, nonjudicial punishment was imposed against the
applicant for failure to repair and wrongfully appearing at the dining
facility with his pants hanging out from his untied boots.  His punishment
consisted of a reduction to
E-2, a forfeiture of pay, restriction, and extra duty.

6.  On 24 August 1982, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-31,
under the Expeditious Discharge Program for failure to maintain acceptable
standards for retention.  The unit commander cited "Your actions since
being assigned to this unit have been unsatisfactory, inconsistent, and not
to the standards required by a soldier in the United States Army.  Past
actions of the UCMJ against you indicate your inability to conduct yourself
in the proper manner.  Your past problems of personal hygiene is a serious
implication for someone in a sanitation-sensitive MOS as yourself,
Finally, your past incidents involving with drug and alcohol abuse have
helped to undermine the moral and discipline of this unit as well as being
detrimental to your own behavior" (all mistakes in grammar/spelling in the
original).

7.  On 24 August 1982, the applicant acknowledged that he had been advised
of the basis for the contemplated action to separate him under the
provisions of Army Regulation 635-200, chapter 5.  He also acknowledged
that if he were issued a general discharge he might expect to encounter
substantial prejudice in civilian life and he elected not to make a
statement on his own behalf.

8.  On 24 August 1982, the applicant elected not to undergo a separation
medical examination.  On 25 August 1982, the applicant's medical records
were reviewed by competent medical authorities and it was determined that a
medical examination for separation was not required.

9.  On 27 August 1982, nonjudicial punishment was imposed against the
applicant for possessing marijuana in the hashish form.  His punishment
consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

10.  The separation authority approved the recommendation for separation
and directed that the applicant be furnished a general discharge.  He also
cited that the applicant was discharged for his inability to adapt to
military life and failure to demonstrate promotion potential.

11.  Accordingly, the applicant was discharged on 1 September 1982 with a
general discharge under the provisions of Army Regulation 635-200, chapter
5, paragraph 5-31, under the Expeditious Discharge Program for failure to
maintain acceptable standards for retention.  He had served 2 years, 6
months and 6 days of total active service.

12.  Item 28 (Narrative Reason for Separation) on the applicant's DD Form
214 (Certificate of Release or Discharge from Active Duty) shows the entry,
"FAILURE TO MAINTAIN ACCEPTABLE STANDARDS FOR RETENTION (EDP)."

13.  There is no evidence in the available records which shows the
applicant was diagnosed with a mental condition prior to his separation on
1 September 1982.

14.  On 14 August 1996, the Army Discharge Review Board (ADRB) denied the
applicant's request for a discharge upgrade to honorable.
15.  Army Regulation 635-200, in effect at the time, set for the basic
authority for the separation of enlisted personnel.  The pertinent
paragraph in chapter 5 provided that members who had completed at least 6
months but less than 36 months of continuous active service on their first
enlistment and 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, or failure to demonstrate promotion potential may
be discharged.  It provided for the expeditious elimination of substandard,
nonproductive Soldiers before board or punitive action became necessary.
Issuance of an honorable discharge certificate was predicated upon proper
military behavior and proficient performance of duty during the member's
current enlistment with due consideration for the member's age, length of
service, grade and general aptitude.  A general discharge is a separation
from the Army under honorable conditions of an individual whose military
record was not sufficiently meritorious to warrant an honorable discharge.

16.  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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of
Medical Fitness) provides that the basic purpose of the physical profile
serial system is to provide an index to the overall functional capacity of
an individual and is used to assist the unit commander and personnel
officer in their determination of what duty assignments the individual is
capable of performing, and if reclassification action is warranted.  Four
numerical designations (1-4) are used to reflect different levels of
functional capacity in six factors (PULHES): P-
physical capacity or stamina, U-upper extremities, L-lower extremities, H-
hearing
and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all
factors indicates that an individual is considered to possess a high level
of medical fitness and, consequently, is medically fit for any military
assignment.

18.  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 Army Board for Correction of
Military Records (ABCMR) should commence on the date of final action by the
ADRB.  In complying with this decision, the ABCMR 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 evidence of record does not support the applicant's contention that
he was accused of having a mental illness.  The applicant's separation
authority cited that he was discharged for his inability to adapt to
military life and failure to demonstrate promotion potential.

2.  Since the applicant's record of service included two nonjudicial
punishments, his record of service did not meet the standards of acceptable
conduct and performance of duty for Army personnel.  Therefore, the
applicant's record of service is insufficiently meritorious to warrant an
honorable discharge.

3.  The narrative reason for separation used in the applicant’s case is
correct.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 14 August 1996.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 13 August 1999.  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

KW____  _DD_____  _QS_____  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.



            __Kenneth Wright______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050006728                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19820901                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 5                    |
|DISCHARGE REASON        |Expeditious Discharge Program for       |
|                        |failure to maintain acceptable standards|
|                        |for retention                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |110.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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