RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 AUGUST 2006
      DOCKET NUMBER:  AR20050015706


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine Taylor                |     |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 to show that he
was retired for length of service on 1 April 2000.

2.  The applicant states he was eligible to retire on 7 January 2000 after
serving 20 years, 4 months and 8 days of active service.  He states he had
already submitted a request to retire, effective 1 April 2000, but his
command separated him on 7 January 2000 and did not award him retirement at
that time.

3.  The applicant provides a copy of his 2000 separation document, an e-
mail from the Chief, Active Guard Reserve separations and retirement team,
and an application for retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 7 January 2000.  The application submitted in this case
is dated
15 October 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.  Records available to the Board indicate the applicant entered active
duty as an enlisted Soldier on 7 April 1969 and was released from active
duty with an honorable characterization of service on 23 December 1971
after serving 2 years, 8 months and 17 days of active Federal service.  At
the time of his release from active duty he was transferred to the United
States Army Reserve.

4.  On 28 March 1983 the applicant returned to active duty, in pay grade E-
6, as a member of the Active Guard Reserve (AGR) program.  He initially
performed duties in the supply field with an engineer unit in Kingston, New
York and then as an infantry team leader at Fort Douglas, Utah.  By July
1995 he was again performing duties in the supply field, this time with a
civil affairs unit in Upland, California.

5.  The initial performance evaluation report the applicant received in
August 1995 after being assigned to the civil affairs unit indicated he was
a successful Soldier who was performing well and had the expertise to be
promoted to the next higher rank.  However, evaluation reports rendered
between 1996 and 1999 were increasingly negative and noted that his
personal situation and problems were affecting his duty performance and
that he was marginally performing his duties in addition to failing to meet
Army weight standards.

6.  On 8 March 1999 orders were issued reducing the applicant from pay
grade E-6 to pay grade E-5 effective 4 March 1999.  The order cites
paragraph 7-10, Army Regulation 140-158, as the basis for the reduction.

7.  Army Regulation 140-158, paragraph 7-10, provides for the reduction of
Soldiers for inefficiency.  It notes that inefficiency is defined as a
demonstration by an individual of distinctive characteristics which show
the inability to perform the duties and responsibilities of the grade or
specialty.  It may also include any act or conduct which clearly shows the
Soldier lacks those abilities and qualities required and expected of a
person of that grade and experience.  Commanders may consider misconduct as
bearing on efficiency.

8.  The applicant was discharged under honorable conditions on 7 January
2000 under the provisions of Army Regulation 635-200, paragraph 14-12c, for
misconduct.  The only documents associated with the applicant’s
administrative separation, which were in records available to the Board,
was a 10 April 1999 request, submitted by the commanding general, Civil
Affairs and Psychological Operations Command to Headquarters, Department of
the Army, requesting approval of the applicant’s discharge.  The request
noted the applicant had engaged in a series of actions since 1996 which
constituted serious misconduct, that an independent elimination board found
he wrongfully showed disrespect and threatened a captain, and lost Army
property through negligence or dereliction of duty.  The recommendation
noted the applicant had nearly 19 years of active Federal service at the
time.

9.  On 29 October 1999 the commander’s request for approval of the
applicant’s discharge was granted by order of The Secretary of the Army
after being reviewed by the Assistant Secretary of the Army (Manpower and
Reserve Affairs).

10.  Army Regulation 635-200 states that any Soldier who has 18 or more
years of active Federal service will not be involuntarily discharged or
released from active duty without approval of Headquarters, Department of
the Army.

11.  At the time of the applicant’s January 2000 discharge, he had
accumulated 19 years, 7 months and 27 days of active Federal service but
well over 20 years of qualifying service for the purpose of drawing retired
pay at age 60.  On 13 July 2000 the applicant was notified of his
eligibility for retired pay at age 60 (Twenty Year Letter).

12.  The statement submitted by the applicant in support of his request for
retirement, which indicated he had more than 20 years of service when
separated from the Active Guard Reserve in January 2000, did not address
the basis for the applicant’s discharge but merely noted that by the author
of the statement’s calculation the applicant had more than 20 years.  The
author of the statement recommended the applicant apply to this Board for
relief.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has not provided any, which
confirms that he had submitted a request for voluntary retirement prior to
his involuntary separation action.  Even if he had submitted such a request
there would have been nothing which precluded his chain of command from
pursuing the separation action they did.

2.  The evidence available to the Board indicates the applicant was reduced
in grade, that a recommendation for elimination as a result of misconduct
was initiated and ultimately approved, and that an elimination board found
the applicant conduct warranted separation.  The applicant’s argument that
his command simply separated him without awarding him retirement is not
entirely credible.  Clearly the applicant would have been aware of the
basis for his separation action.

3.  There is no evidence, and the applicant has not provided any, that his
separation in January 2000 was erroneous or unjust and in the absence of
such evidence there is no basis to grant the relief requested.  It is noted
that the applicant, in spite of being discharged under honorable conditions
for misconduct in January 2000, may still be eligible to draw retired pay
upon reaching age 60 (February 2012).

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 7 January 2000; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
6 January 2003.  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

__CG ___  __JG ___  ___PT___  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.




                                  _____Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015706                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|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.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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