RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 August 2006
      DOCKET NUMBER:  AR20060001114


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret Patterson            |     |Chairperson          |
|     |Mr. Michael Flynn                 |     |Member               |
|     |Mr. Gerald Purcell                |     |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 discharge be
upgraded.

2.  The applicant states he served five years and reenlisted after serving
two and a half years of honorable service.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 31 May 1983.  The application submitted in this case is dated
12 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 enlisted on 21 March 1978 for a period of 3 years.  He
successfully completed basic combat training, advanced individual training,
and basic airborne training and was awarded military occupational specialty
71L (administrative specialist).  On 29 September 1980, he was honorably
discharged for immediate reenlistment.  He reenlisted on 30 September 1980
for a period of 3 years.

4.  On 19 November 1982, nonjudicial punishment was imposed against the
applicant for disorderly conduct and destroying personal property.  His
punishment consisted of a forfeiture of pay (suspended).

5.  Records show that prior to 12 January 1983, the applicant was verbally
counseled, given a letter of reprimand for conduct unbecoming a
noncommissioned officer (failures to repair), and given counseling
statements for his substandard duty performance, tardiness, and
unwillingness to perform positively as a noncommissioned officer.

6.  On 14 February 1983, nonjudicial punishment was imposed against the
applicant for failure to repair and disobeying a lawful order.  His
punishment consisted of a reduction to E-4.

7.  On 16 May 1983, nonjudicial punishment was imposed against the
applicant for being drunk and disorderly and damaging military property.
His punishment consisted of a reduction to E-3 and restriction.

8.  On 14 April 1983, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 13, for
unsatisfactory performance.

9.  On 25 April 1983, after consulting with counsel, the applicant
acknowledged that he might encounter substantial prejudice in civilian life
if a general discharge were issued.  He also elected to submit a statement
in his own behalf.  In summary, he requested that his separation be
suspended until he could separate upon his expiration term of service on 29
September 1983 or take 60 days of terminal leave starting on 1 August 1983.
 He also requested that his children be allowed to graduate and that he be
allowed to find his family a place to live.  He stated that he did not want
to receive a general discharge because his duty performance was hampered
due to family problems during his second term.

10.  The separation authority approved the recommendation for separation
and directed that the applicant be furnished a general discharge.

11.  Accordingly, the applicant was discharged with a general discharge on
31 May 1983 under the provisions of Army Regulation 635-200, chapter 13,
for unsatisfactory performance.  He had served a total of 5 years and 11
days of creditable active service.

12.  On 25 June 1984, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

13.  Army Regulation 635-200 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.  Service of Soldiers separated because of
unsatisfactory performance under this regulation will be characterized as
honorable or under honorable conditions.

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.  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 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 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 record of service during his second enlistment included
a letter of reprimand, adverse counseling statements, and three nonjudicial
punishments.  As a result, his quality of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

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

3.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 25 June 1984.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 24 June 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

MP_____  MF______  GP_____  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.



                                  __Margaret Patterson__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001114                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060803                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19830531                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 13                   |
|DISCHARGE REASON        |Unsatisfactory Performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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