RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050016799


      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:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 discharge be upgraded to an honorable
discharge.

2.  The applicant states, in effect, that he should have received an
honorable discharge.  He was told that after 6 months his discharge would
be changed to an honorable discharge.

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 17 September 1984, the date he was released from active
duty.  The application submitted in this case is dated 9 November 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 enlisted in the Regular Army on 8 February 1983.  After
completion of basic combat training and advanced individual training, he
was awarded military occupational specialty 63B10 (Power Generator and
Wheel Vehicle Mechanic) and was assigned to B Battery, 1st Battalion, 55th
Air Defense Artillery, Fort Polk, Louisiana.

4.  On 4 September 1984, the applicant accepted nonjudicial punishment
(NJP) under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), for possession of an illegal substance.  His punishment consisted
of a reduction in pay grade, forfeiture, restriction and extra duty.

5.  The applicant's service record does not contain the applicant's
separation packet.



6.  The applicant's DD Form 214 (Certificate of Release or Discharge from
Active Duty) shows that he was discharged on 17 September 1984, under the
provisions of Army Regulation 635-200, Chapter 13 for unsatisfactory
performance, and his service was characterized as under honorable
conditions.  He had served 1 year, 7 months, and 10 days of active service.

7.  There is no evidence in the available record which shows the applicant
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitation.

8.  Army Regulation 635-200 (Personnel Separations) 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.  The service of Soldiers separated
because of unsatisfactory performance under this regulation will be
characterized as honorable or under honorable conditions.

9.  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.

10.  Army Regulation 635-200, paragraph 3-7, 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 discharge be upgraded to an honorable
discharge.

2.  The Board must review a case with a presumption of regularity, that
what the Army did was correct.  It is up to the applicant to prove
otherwise.  The applicant has not submitted any documentation to overcome
the presumption of regularity.

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.  Therefore, he is not
entitled to correction of his records to show an honorable discharge.

4.  Army regulations do not provide for the automatic upgrading of
discharges.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 September 1984; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on  
16 September 1987.  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

___jlp___  ___lds___  ___jtm___  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.




                                  ______Linda D. Simmons________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016799                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060822                                |
|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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