RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050018212


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 discharge.

2.  The applicant states that he had a drinking problem at the time of his
discharge and that he was "young and foolish."

3.  The applicant provided a Department of Veterans Affairs Statement in
Support of Claim Form in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 June 1981, the date of his discharge.  The application
submitted in this case is dated 14 December 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, at the age of 17, he enlisted in the
Regular Army and entered active duty on 28 November 1979.  He was trained
in, awarded, and served in military occupational specialty (MOS) 11H10
(Assistant Gunner) and the highest rank he attained while serving on active
duty was private/pay grade E-2.  The applicant’s record documents do not
show any significant acts of valor.

4.  The record reveals a disciplinary history that includes his acceptance
of nonjudicial punishment (NJP) under the provisions of Article 15 of the
Uniform Code of Military Justice (UCMJ) on the following two separate
occasions for the offenses indicated:  16 June 1980, for willfully
disobeying a lawful order on 30 May 1980; and on 16 January 1981, for
orally communicating obscene language to a female on 10 December 1980.  The
record also reveals that the applicant was counseled numerous occasions
during the period 17 April 1980 through 19 February 1981.
5.  On 13 April 1981, the applicant’s unit commander advised the applicant
that he intended to recommend his separation from the Army under the
provisions of paragraph 14-33b(1) of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), for misconduct.  The unit commander
specifically stated the following reasons for the proposed separation:
Incidents of discreditable nature with civil and/or military authority and
an established pattern of shirking.  The unit commander also advised the
applicant of his rights.

6.  On 23 April 1981, the applicant acknowledged that he was advised of the
basis for the contemplated separation action, its effects and of the rights
available to him.  He also acknowledged his right to consult with counsel;
however, he waived his right to do so.  Records show that the applicant
elected not to submit a statement in his own behalf.  Additionally, the
applicant was referred for rehabilitation on 3 February 1981 and on 19
February 1981 and was dropped from the course as a nongraduate.

7.  The applicant's records contain a DA Form 3822-R (Report of Mental
Status Evaluation) which shows that on 17 March 1981 the applicant
underwent a mental status evaluation for the purpose of discharge for
misconduct.  This form shows that the applicant exhibited normal behavior,
was fully alert, fully oriented, had an unremarkable mood or affect, had a
clear thinking process, normal thought content, and good memory.  The
applicant was psychologically cleared for administrative actions that the
command deemed appropriate.

8.  On 22 May 1981, the separation authority directed the applicant’s
separation under the provisions of chapter 14 of Army Regulation 635-200
for misconduct, and directed that he receive an Under Other Than Honorable
Conditions Discharge Certificate and reduced to the lowest enlisted grade.
On 3 June 1981, the applicant was discharged accordingly.  The DD Form 214
issued to him at the time, confirms the applicant completed a total of 1
year, 6 months, and 6 days of creditable active military service.  This
form also shows the applicant was discharged under the provisions of
chapter 14 of Army Regulation 635-200 for misconduct-frequent incidents of
a discreditable nature with civil or military authorities.

9.  On 13 April 1983 the Army Discharge Review Board denied the applicant's
petition to upgrade his discharge.



10.  The applicant provided a Department of Veterans Affairs Statement in
Support of Claim Form.  This form shows that the applicant contends that
his discharge was unjust because he was very young when he was in the
military.

11.  The applicant continues that he became depressed while in the service
and began to drink alcohol.  The applicant argues that his platoon sergeant
did not like him and gave him a "hard time" and that he was falsely accused
of certain acts such as misconduct and being absent without leave (AWOL).
The applicant requests that his discharge be upgraded so that he may
receive Veterans benefits.

12.  There is no evidence in the applicant's military service records which
shows that he was diagnosed with or treated for alcohol dependency.

13.  Army Regulation 635-200 (Personnel Separations) 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 a serious offense, and convictions by civil
authorities.  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 appropriate for a Soldier discharged under this chapter.  However,
the separation authority may direct a general discharge if such is merited
by the Soldier’s overall record.  Only a general court-martial convening
authority may approve an honorable discharge or delegate approval authority
for an honorable discharge under this provision of regulation.

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.

15.  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.

16.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the three year limit on filing to
the Army Board for Correction of Military Records (ABCMR) should commence
on the date of final action by the ADRB.  In complying with this decision,
the ABCMR has adopted the broader policy of calculating the 3-year time
limit from the date of exhaustion in any case where a lower level
administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions
discharge be upgraded to an honorable discharge because he had a drinking
problem at the time of his discharge and that he was "young and foolish."

2.  There is no evidence in the applicant's personnel service record which
shows that the applicant was diagnosed or treated for alcoholism or that he
sought assistance from his chain of command for problems as a result of
alcohol abuse. Therefore, the applicant's contention is contrary to the
facts in this case.

3.  Records show that the applicant was only 17 years of age at the time of
his offenses.  However, there is no evidence that indicates that the
applicant was any less mature than other soldiers of the same age who
successfully completed military service.

4.  Evidence of record confirms the applicant’s unit commander notified him
of the contemplated separation action and that he waived his right to
consult with legal counsel.  It further shows that the applicant
acknowledged the basis for the contemplated separation action and its
possible effects.

5.  The record confirms that all requirements of law and regulation were
met and the applicant’s rights were fully protected throughout the
separation process.  The record further shows the applicant’s discharge
accurately reflects his overall record of undistinguished service.

6.  The applicant's record of service included two nonjudical punishments
for disobeying a lawful order and orally communicating obscene language to
a female as well as numerous counseling from his chain of command.

7.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, he is not entitled to either a general
discharge or an honorable discharge.

8.  The ABCMR does not grant requests for upgrade of discharges solely for
the purpose of making the applicant eligible for benefits.

9.  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.

10.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 13 April 1983.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 12 April 1986.  However,
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

_ALR_____  _QAS___  _LMB__   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.




                                     __Allen L. Raub___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050018212                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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