RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:  20 July 2006
      DOCKET NUMBER:  AR20050017077


      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. Stephanie Thompkins           |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Ms. Marla Troup                   |     |Member               |
|     |Mr. William F. Crain              |     |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, in effect, upgrade of his discharge.

2.  The applicant states, in effect, his discharge should be upgraded
because of mitigating circumstances based on his immaturity and ignorance.

3.  The applicant provides his letter to the Service Department Discharge
Review Board in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 10 February 1981, the date of his discharge.  The application
submitted in this case is dated 16 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's military records show that he enlisted in the United
States Army Reserve, in pay grade E-1, effective 7 November 1979.  He was
ordered to active duty for training effective 23 November 1979.

4.  He was discharged from active duty on 25 February for the purpose of
immediate enlistment in the Regular Army, in pay grade E-1, effective
26 February 1980.  He completed training as a cannoneer.

5.  On 19 June 1980, he was punished under Article 15, Uniform Code of
Military Justice (UCMJ), for failure to go to his appointed place of duty.
His punishment included forfeiture of $50.00 pay, suspended for 60 days,
until 22 August 1980, and 5 days extra duty upon completion of appellate
action.

6.  On 12 August 1980, he was punished under Article 15, UCMJ, for twice
failing to go to his appointed place of duty on 5 August 1980.  His
punishment included forfeiture of $75.00 pay, of which $50.00 was suspended
for 60 days, until 13 October 1980, and 7 days extra duty.

7.  On 29 September 1980, he was punished under Article 15, UCMJ, for
violation of a lawful regulation, twice failing to report at the time
prescribed to his appointed place of duty on 11 September 1980, and being
disrespectful in language toward a superior non-commissioned officer.  His
punishment included forfeiture of $104.00 a month for one month, 10 days
extra duty, and 4 days restriction.

8.  On 14 October 1980, the applicant's commander recommended the applicant
be barred from reenlistment.  The commander stated that the applicant had
been a continual problem for the battery.  The applicant's attitude, lack
of initiative and absence of military bearing had caused undue stress for
his superiors and peers alike.  The commander also stated that the
applicant's record contained numerous incidents where he was counseled for
numerous problems from failure to repair, tardiness, and the more severe
encounters with his leaders and forms of authority.  After numerous
counseling sessions, the applicant had failed to conduct himself in a
suitable military manner and had shown little evidence of attempting to
comply with rules and regulations.

9.  The bar to reenlistment was approved on 29 October 1980 and the
applicant was notified of its approval on 5 November 1980.

10.  On 28 October 1980, he was punished under Article 15, UCMJ, for
failure to go to his appointed place of duty on or about 2 October and 10
October 1980.  His punishment included forfeiture of $75.00 pay per month
for one month and 5 days extra duty.

11.  On 1 December 1980, the applicant's commander advised him that he was
being considered for elimination from the service for misconduct.  The
commander also advised the applicant of the rights available to him.

12.  On 3 December 1980, the applicant acknowledged the proposed separation
action for misconduct under Army Regulation 635-200, paragraph 14-33b.

13.  The applicant departed from his unit and was reported absent without
leave from 8 December through 10 December 1980.

14.  On 15 January 1981, the applicant’s commander recommended the
applicant be discharged under the provisions of Army Regulation 635-200,
paragraph 14-33b.  The commander stated that the applicant would not be an
asset nor render credit to any future deployment with the Individual Ready
Reserve under full mobilization due to his constant misconduct.

15.  On 2 February 1981, the appropriate separation authority approved the
discharge and specified the issuance of an under other than honorable
conditions discharge certificate.

16.  He was separated on 10 February 1981, in pay grade E-1, under the
provisions of Army Regulation 635-200, paragraph 14, Misconduct-Frequent
incidents of a Discreditable Nature with Civil or Military Authorities.  He
was credited with 11 months and 12 days net active service.  His character
of service was under other than honorable conditions.

17.  The applicant submits his letter to the Service Department Discharge
Review Board, in which he stated, this letter was a "Notice of
Disagreement" and formally requested his discharge be changed.  He stated
that his discharge circumstances were unusual but could be easily explained
if he had the opportunity to appear before the Service Department Discharge
Review Board.

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

19.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for the separation of enlisted personnel.  Paragraph 14-33b of
the regulation established the 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 was normally
considered appropriate.

20.  Army Regulation 635-200, paragraph 3-7 provides that an honorable
discharge is a separation with honor.  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,
or is otherwise so meritorious, that any other characterization would be
inappropriate.

21.  Army Regulation 635-200, paragraph 3-7, also 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.  In view of the circumstances in this case, the applicant is not
entitled to an upgrade of his discharge.  He has not shown error,
injustice, or inequity for the relief he now requests.

2.  The applicant’s contentions have been noted; however, they do not
sufficiently support his request and do not serve as mitigation in his
case.  The applicant's commander felt the applicant should be discharged
because of his attitude, lack of initiative and absence of military bearing
that had caused undue stress for his superiors and peers alike.  The
commander also stated that the applicant's record contained numerous
incidents where he was counseled for numerous problems from failure to
repair, tardiness, and the more severe encounters with his leaders and
forms of authority.  After numerous counseling sessions, the applicant had
failed to conduct himself in a suitable military manner and had shown
little evidence of attempting to comply with rules and regulations.
Therefore, it appears the applicant made no attempt to adapt to military
life.

3.  The evidence of record confirms the applicant’s discharge processing
was accomplished in accordance with applicable regulations and that the
type of discharge directed and the reasons therefore were appropriate
considering all the facts of the case.  He was properly discharged and he
has not shown otherwise.

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 February 1981, the date of his
discharge from active duty; therefore, the time for the applicant to file a
request for correction of any error or injustice expired on 9 February
1984.  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

__T_____  _WDP___  __WFC__  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.




                                  _____William D. Powers____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050017077                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060720                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |A70                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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