RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 December 2005
      DOCKET NUMBER:  AR20050007261


      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. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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.

2.  The applicant states the reason he received a general discharge was due
to youthful indiscretion.  He contends that he has been a model citizen
since leaving the military and that he was advised at the time of his
discharge that he could apply for an honorable discharge six months from
his separation date.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 October 1986.  The application submitted in this case is
dated 6 May 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 was born on 8 October 1967.  He enlisted on 25 July 1985
for a period of 4 years.  He successfully completed One Station Unit
Training in military occupational specialty 11B (infantryman).

4.  On 7 April 1986, nonjudicial punishment was imposed against the
applicant for failing to obey a lawful order/regulation and dereliction of
duty.  His punishment consisted of 14 days of extra duty.

5.  On 15 July 1986, nonjudicial punishment was imposed against the
applicant for failure to repair.  His punishment consisted of 5 days of
extra duty.

6.  Between February 1986 and September 1986, the applicant was counseled
on numerous occasions for various infractions, which included failures to
repair, dereliction of duty, a dirty uniform, and failure to obey lawful
orders.

7.  On 23 September 1986, the applicant was notified of his pending
separation under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.  His unit commander stated that it was his
judgment that the applicant would not develop sufficiently to participate
satisfactorily in further training and/or become a satisfactory Soldier.


8.  On 24 September 1986, after consulting with counsel, the applicant
acknowledged that he might encounter substantial prejudice in civilian life
if a general discharge were issued, that he might not be eligible for many
or any benefits as a veteran under both Federal and State laws, and that he
might encounter substantial prejudice as a civilian.  He also elected not
to submit a statement in his own behalf.

9.  On 25 September 1986, nonjudicial punishment was imposed against the
applicant for using disrespectful language toward a noncommissioned
officer.  His punishment consisted of a reduction to E-1 and 14 days of
extra duty.

10.  On 25 September 1986, the separation authority approved the
recommendation for separation and directed that the applicant be furnished
a general discharge.

11.  Accordingly, the applicant was discharged with a general discharge on
8 October 1986 under the provisions of Army Regulation 635-200, chapter 13,
for unsatisfactory performance.  He had served 1 year, 2 months, and 14
days of creditable active service.

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

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

14.  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.  Age is not a sufficiently mitigating factor.  The applicant was almost
18 years old when he enlisted and he successfully completed One Station
Unit Training.

2.  The applicant has provided no evidence in support of his contention
that he is a "model citizen."  Nevertheless, good post service alone is not
a basis for upgrading a discharge.

3.  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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

4.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

5.  The applicant's record of service included numerous adverse counseling
statements and three nonjudicial punishments.  As a result, his quality 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.

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 8 October 1986; therefore, the time for the
applicant to file a request for correction of any injustice expired on 7
October 1989.  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

TK______  _RD____  __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.




            ___Ted Kanamine_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050007261                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051222                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19861008                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unsatisfactory performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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