RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20050016364


      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             |
|     |Mr. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis L. Greenway            |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Ms. Peguine M. 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 under other than honorable conditions
discharge be upgraded to an honorable or a general discharge.

2.  The applicant states, in effect, that the nature of the separation was
too harsh for the offense committed.

3. The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 22 October 1980, the date of his discharge from active
duty.  The application submitted in this case is dated 17 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.  The applicant's record shows that he enlisted in the Regular Army on  
27 July 1978.  He completed basic combat training and advanced individual
training, and was awarded the military occupational specialty 11B10
(Rifleman).  The highest rank he attained while serving on active duty was
Private First Class/pay grade E-3.

4.  On 16 March 1979, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a
lawful order and for not reporting to his appointed place of duty for
training.

5.  On 30 January 1980, the applicant accepted NJP under Article 15, UCMJ
for willfully disobeying a lawful order from a senior noncommissioned
officer.

6.  The applicant's records show that he had various charges preferred
against him for larceny, stolen property and willfully disobeying a lawful
order.  However, there is no disposition on the charges.

7.  On 12 June 1980, the applicant was convicted by a Special Court-Martial
of being an accessory.  The applicant was sentenced to a reduction to
Private/pay grade E-1, forfeiture of $200 per month for three months, and
confinement at hard labor for three months.

8.  On 30 Jul 1980, the applicant was arrested for assault.  On 7 August  
1980, the applicant was found sleeping on guard duty, and later that same
day the applicant was found sleeping during duty hours.

9.  On 11 August 1980, the applicant accepted NJP under Article 15, UCMJ
for disobeying a lawful order from a commissioned officer and for sleeping
while on guard duty.

10.  On 9 September 1980, the applicant was informed by his commander of
his intent to recommend his discharge for misconduct, his right to counsel,
his right to an administrative hearing by a board of officers, his right to
submit a statement in his own behalf and his right to be represented by
counsel at hearing.  The commander also explained the applicant's waiver
privileges and the withdrawal of waiver privileges.

11.  On 16 September 1980, the applicant requested a personal appearance
before a board of officers.

12.  On 29 September 1980, a board of officers recommended that the
applicant be discharged from service for misconduct and that his service
characterized as under other than honorable conditions.  The board further
recommended that execution of the discharge be suspended pending successful
completion of the Retraining Brigade Program.

13.  On 7 October 1980, the applicant was caught with an illegal substance.
 On 10 October 1980, the applicant was notified in writing that the
suspension of his discharge was going to be vacated.  On 16 October 1980,
the applicant tested positive for an illegal substance.

14.  On 17 October 1980, the appropriate authority vacated the suspension
of the applicant's discharge for misconduct under other than honorable
conditions and ordered his discharge be executed in accordance with Army
Regulation  
635-200, paragraph 1-15.

15.  On 20 October 1980, the applicant was medically cleared for separation
from active duty.

16.  On 22 October 1980, the applicant was discharged from active duty for
misconduct.  He had completed 2 years, 1 month, and 20 days of active
service which was characterized as under other than honorable conditions.
He had  
36 days of time lost.

17.  The applicant enlisted and entered active duty on 20 February  
1981; however, he fraudulently concealed his prior service and therefore
was discharged on 15 December 1981 due to misconduct, fraudulent entry.

18.  The evidence shows that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge but his 15-year statute of
limitations had expired.

19.  Army Regulation 635-200 (Personnel Separations), currently in effect,
sets forth the basic authority for the separation of enlisted personnel.
Chapter  
14, establishes policy and prescribes procedures for separating members for
misconduct.  Specific categories include minor disciplinary infractions, a
pattern of misconduct, commission of serious offense, conviction by civil
authorities, desertion, or absences without leave.  Action will be taken to
separate a member for misconduct when it is clearly established that
rehabilitation is impracticable or is unlikely to succeed.  A discharge
under other than honorable conditions is normally considered appropriate.

20.  Army Regulation 635-200 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.

21.  Army Regulation 635-200 provides that a general discharge is a
separation from the Army under honorable conditions.  When authorized, it
is issued to a Soldier whose military record is satisfactory but not
sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his under other than honorable conditions
discharge be upgraded to an honorable or a general discharge.
2.  Although the applicant may now believe that the nature of his
separation was harsh for the offenses committed; his quality of service did
not meet the standards of acceptable conduct and performance of duty for
Army personnel.

3.  The type of discharge directed and the reasons for separation were
appropriate considering all the facts of the case.  The records contain no
indication of procedural or other errors that would tend to jeopardize his
rights.

4.  A board of officers essentially gave the applicant a second chance by
suspending his discharge.  However, the applicant's subsequent possession
and use of an illegal substance caused that suspension to be vacated.

5.  In order to justify correction of a military record the applicant must
satisfactorily show, or it must otherwise satisfactorily appear, that the
record is in error or unjust.  The applicant has failed to submit
sufficient evidence that would satisfy this requirement; therefore, he is
not entitled to an honorable or a general discharge.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
21 October 1983.  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

___clg __  ___jbg___  ___pmt__  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 L. Greenway______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016364                           |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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