RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20050018336


      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. Karl L. Briales               |     |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, in effect, that his general under honorable
conditions discharge be upgraded to honorable, and the narrative reason for
his separation to be changed.

2.  The applicant states that he has proved himself worthy at work, life
and would like to be more involved, however, cannot due to his discharge.
He further states that he even looked into reenlisting, however, his
discharge prevented him from doing so.  He continues that he would like the
consideration of this change as he has turned his life around.  He
concludes that he was never sure why he was discharged under these
conditions.

3.  The applicant did not provide additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 December 1987.  The application submitted in this case
is dated 14 January 2006.

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 evidence of record shows that on 25 July 1984, the applicant
enlisted in the Regular Army for a period of 4 years.  He successfully
completed basic combat and advanced individual training and was awarded the
military occupational specialty 94B10 (Food Service Specialist).

4.  On 30 October 1986, the applicant accepted nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice for
"treat[ing] with contempt and being disrespectful toward two
noncommissioned officers, and disobeying a lawful order."  His punishment
consisted of reduction to the grade of E-3 (suspended for 90 days), 14 days
extra duty and 14 days restriction.

5.  On 30 March 1987, the applicant accepted nonjudicial punishment under
the provisions of Article 15 of the Uniform Code of Military Justice for
threatening to kill, pushing and being disrespectful towards a
noncommissioned officer.  His punishment consisted of reduction to the
grade of E-2, 30 days extra duty and
30 days restriction.

6.  On 22 October 1987, the unit commander notified the applicant that he
was initiating action to discharge the applicant from the service under
chapter 13 of Army Regulation 635-200 (Enlisted Personnel Separations).
The unit commander indicated that his specific reason for initiating
separation action was his record of nonjudicial punishment, which included
one Summarized Article 15, one Field Grade Article 15, and one pending
Field Grade Article 15 for attacking another Soldier.

7.  On 3 December 1987, the applicant was discharged under the provisions
of chapter 13 of Army Regulation 635-200.  He was discharged due to
unsatisfactory performance.  His service was characterized as general under
honorable conditions, and he completed 3 years, 4 months, and 9 days of
active military service.  He was assigned separation program designator of
"JHJ," and his DD Form 214 (Certificate of Release or Discharge from Active
Duty) shows the narrative reason for separation as unsatisfactory
performance.

8.  There is no indication that the applicant applied to the Army Discharge
Review Board for an upgrade of his discharge within the board's 15-year
statue of limitations.

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes),
then in effect, prescribes the specific authorities (regulatory, statutory,
or other directives), the reasons for the separation of members from active
military service, and the separation program designators to be used for
these stated reasons.  The regulation shows that the separation program
designator “JHJ” as shown on the applicant’s DD Form 214 specifies the
narrative reason for discharge as unsatisfactory performance and that the
authority for discharge under this separation program designator is “Army
Regulation 635-200 Chap 13”.

10.  Army Regulation 635-200, then in effect, sets forth the basic
authority for the separation of enlisted personnel.  Paragraph 13, then in
effect, provides for discharge of individuals for unsatisfactory
performance.  The regulation defined unsatisfactory performance as
including seriousness of the circumstances is such that the member's
retention would have an adverse impact on military discipline, good order,
and morale.

11.  Army Regulation 635-200, then in effect, 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.

12.  Army Regulation 635-200, then in effect, 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 general under honorable conditions
discharge be upgraded to honorable and the narrative reason for his
separation to be changed.

2.  The applicant's administrative separation was accomplished in
compliance with applicable regulation with no indication of procedural
errors that would tend to jeopardize his rights.

3.  It appears from the evidence available that the applicant was properly
and equitably discharged in accordance with regulations in effect at the
time. 

4.  In the absence of evidence to the contrary, it is determined that all
requirements of law and regulations were met and the rights of the
applicant were fully protected throughout the separation process.  Further,
it is determined that the type of discharge and the reason for separation
were appropriate considering the available facts of the case.

5.  The applicant’s record of service shows he received NJP on at least two
occasions and was pending one for attacking a Soldier.  As a result, his
quality of service did not meet the standards of acceptable conduct and
performance of duty for Army personnel.  The fact that the specific cited
reasons for his separation all involved misconduct, yet he was separated
for unsatisfactory performance worked to his advantage by limiting the
characterization of his discharge to an under honorable conditions.

6.  Based on all of the foregoing, there is insufficient basis to upgrade
the applicant's discharge.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 December 1987, date of discharge;
therefore, the time for the applicant to file a request for correction of
any error or injustice expired on 2 December 1990.  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___  __lmb___  __qas___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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                 |AR20050018336                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19871203                                |
|DISCHARGE AUTHORITY     |AR635-200, Chap 13                      |
|DISCHARGE REASON        |Unsat Performance                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.4900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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