RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            08 August 2006
      DOCKET NUMBER:   AR20060000504


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Dale DeBruler                 |     |Member               |
|     |Mr. James Hastie                  |     |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 general discharge be upgraded to an
honorable discharge.

2.  The applicant states, in effect, that he got married while in boot camp
and his wife joined him in Germany 4 months later.  Because he was gone to
training in the field so much and his wife was off-post in a foreign
country, she became isolated and lonely and his marriage began to fail.  He
also found out that his wife was having an affair with another Soldier and
was pregnant.  After seeking help from the chain of command and seeing no
progress, he sent his wife home in hopes that things would get better.
However, things got worse and he could not concentrate on his duties.  He
continues by stating that he informed his chain of command that he wanted
out of the Army and was informed that it was not that easy.  His chain of
command tried to convince him that he would regret such a decision late in
life and they were right; however, he had made up his mind by that time.
He further states that up until his marital problems he was a good Soldier
who showed much potential and a promising career.  However, he could not
focus on his duties.  He also states that he is still married to his wife
after 17 years and has three children.

3.  The applicant provides a copy of his report of separation (DD Form 214)
and a copy of an Army Achievement Medal (AAM).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 August 1990.  The application submitted in this case is
dated 2 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 applicant was born on 10 October 1970 and enlisted in the Regular
Army on 25 November 1988 for a period of 4 years, training as an armor
crewman, and a cash enlistment bonus.  He completed his one-station unit
training (OSUT) at Fort Knox, Kentucky and was paid his enlistment bonus on
24 March 1989.  He was transferred to Germany on 27 March 1989 and was
assigned to an armor company in Schweinfurt.

4.  In May 1989, he was counseled regarding his poor appearance and
displaying a rebellious attitude.  He was again counseled on 16 June 1989
regarding his poor appearance.

5.  On 31 June 1989, he was counseled regarding his appearance (still
needed improvement), his tact towards noncommissioned officers, and
improvement in his motivation.

6.  He was counseled on 20 July 1989 regarding his involvement in a motor
vehicle accident in which he was found at fault and had not reported it to
his chain of command.

7.  The applicant was arrested by German authorities for larceny of a
wooden bench in August 1989.  The German officials waived their right to
exercise jurisdiction and the record is silent as to any punishment he
received for this offense.

8.  He was counseled on 20 August 1989 regarding his need to improve in the
areas of personal appearance and esprit de corps.  He was also advised of
the effects of drinking and driving, drugs and indebtedness could have on
his career.

9.  He was awarded the AAM on 10 October 1989 and was advanced to the pay
grade of E-3 on 25 October 1989.  On 30 October 1989, he was counseled
again regarding his uniform appearance.

10.  On 30 November 1989, he was counseled regarding his good performance
and his failure to study for his skills qualification test.  He was also
informed that he was expected to spend his clothing allowance to buy new
uniforms.

11.  On 7 December 1989, he was counseled regarding his disrespect towards
and failure to obey a lawful from a superior noncommissioned officer.

12.  He was again counseled on 27 December 1989 and was given a final
warning regarding his uniforms.

13.  The applicant received a speeding ticket on 15 January 1990 and on
15 March 1990 his platoon leader counseled him in regards to being late for
platoon roll-out.
14.  On 13 June 1990, he was counseled regarding his being under the
influence of alcohol while on duty.  He was also ordered to move into the
barracks from his off-post residence.

15.  On 17 June 1990, he was counseled regarding his being disrespectful in
language towards a superior noncommissioned officer.

16.  On 27 June 1990, he was counseled regarding two incidents of failure
to follow instructions to bring his field gear to duty and for failure to
be at his place of duty.  The applicant was escorted to his off-post
residence to get all of the items he needed to reside in the barracks
because he did not have transportation to get to work.

17.  On 10 July 1990, nonjudicial punishment was imposed against the
applicant for being drunk on duty and for failing to go to his place of
duty.  His punishment consisted of a reduction to the pay grade of E-2, a
forfeiture of pay, extra duty and restriction.  He also underwent a mental
status evaluation and was determined to be mentally responsible and able to
distinguish right from wrong.  He was cleared for any administrative action
deemed appropriate by the commander.

18.  On 11 July 1990, the applicant’s commander initiated action to
separate the applicant from the service under the provisions of Army
Regulation 635-200, chapter 13, for unsatisfactory performance.

19.  On 13 August 1990, the applicant declined the assistance of counsel
and on 15 August 1990, the appropriate authority approved the
recommendation for discharge and directed that the applicant be furnished a
General Discharge Certificate.

20.  Accordingly, he was discharged under honorable conditions on 31 August
1990, under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.  He had served 1 year, 9 months, and 6 days of
total active service.

21.  On 12 August 1991, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge.  He asserted at that time that when
he saw that he could not be discharged from the Army, he figured that if he
got into trouble, the Army would put him out, so he got into a little
trouble and his plan worked.  He further contended that his commander made
it look like he was a misfit but he was really a good Soldier and deserved
more than a general
discharge.  The ADRB did not find anything of sufficient mitigation to
cause an upgrade of his discharge.  The ADRB determined that his discharge
was both proper and equitable under the circumstances and voted unanimously
to deny his request on 2 March 1994.

22.  Army Regulation 635-200, chapter 13, in effect at the time,
established policy and provided guidance for eliminating enlisted personnel
for unsatisfactory performance and who were unsuitable for further military
service.  An individual could be separated for unsatisfactory performance
if it was determined that the member will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
soldier.  A discharge under honorable conditions is normally considered
appropriate.

23.  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 3 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’s administrative separation under the provisions of Army
Regulation 635-200, chapter 13, was administratively correct and in
conformance with applicable regulations with no indication of any
violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted;
however, they are not sufficiently mitigating to warrant relief when
compared to his overall record of service and the number of repeated
offenses he committed in such a short period of service.  His service
simply does not rise to the level of a fully honorable discharge.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 2 March 1994.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 1 March 1997.  The
applicant did not file within the ABCMR's 3-year statute of limitations and
has not provided 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

____JA__  ____DD _  ___JH __  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.




                                  ____James Anderholm____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000504                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060808                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1990/08/31                              |
|DISCHARGE AUTHORITY     |AR635-200/ch13 . . . . .                |
|DISCHARGE REASON        |Unsat perf                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.144.4900/572/a49.00   |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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