RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20060002145


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 under honorable conditions
discharge be upgraded.

2.  The applicant states that his discharge was too harsh.

3.  The applicant provides no additional documents in support of his
application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel states, in effect, that the evidence of record substantially
supports the applicant’s contentions.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 5 February 1985.  The application submitted in this case is
dated 28 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 in the Regular Army on 4 May 1983 for a period
of three years.  He completed basic training and advanced individual
training (AIT) at Fort Benning, Georgia.  At the completion of AIT, he was
awarded military occupational specialty (MOS) 11B (Infantryman).  He was
assigned to Germany in August 1983.  He was advanced to private first class
on 4 May 1984.

4.  On 4 September 1984, the applicant accepted nonjudicial punishment
under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully
using, possessing, and distributing some amount of marijuana in the hashish
form on 18 May 1984 and for wrongfully committing sodomy with an unknown
male.  His punishment consisted of a reduction to private E-1; a forfeiture
of $298.00 pay per month for 2 months (suspended until 4 November 1984);
and extra duty for a period of 45 days.

5.  On 29 October 1984, the applicant's unit commander notified him of his
proposed recommendation to discharge him under the provisions of Army
Regulation 635-200, chapter 13 for unsatisfactory performance.  He was
advised of his rights.

6.  The applicant was afforded the opportunity to consult with legal
counsel.  He submitted statements in his own behalf.  He stated that he
came into the Army with expectations of being a Soldier, but he was put
into another job.  He was awarded MOS 11B, but he worked as a carpenter.
He stated he has worked very hard; however, others have received awards and
praise for their work.  He also stated that being around others who were
chaptered and others in the carpentry shop led him to use drugs.  His
family problems got worse and he had no way of helping his family.  He
asked his company commander for rehabilitation, but he did not receive it.
He also stated the charges on his chapter were general statements.  His
company commander only counseled him once.  He further stated he wanted to
be retained in the Army to be a Soldier and wanted this opportunity to show
his capabilities as a Soldier.

7.  On 29 October 1984, the unit commander recommended that the applicant
be separated from the service prior to the expiration of his term of
service under the provisions of Army Regulation 635-200, chapter 13 for
unsatisfactory performance.  The unit commander stated the separation
action was requested due to the applicant’s failure to respond to
counseling, his failure to make sufficient progress, and his poor attitude
and poor military bearing.  The unit commander requested further
rehabilitative requirements be waived.

8.  On 8 January 1985, the separation authority approved the recommendation
for separation, waived rehabilitation requirements, and directed issuance
of a General Discharge Certificate.

9.  The applicant was discharged on 5 February 1985 under the provisions of
Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He
had 1 year, 9 months, and 2 days of active military service.

10.  On 27 March 1986, the Army Discharge Review Board (ADRB), by unanimous
vote, denied the applicant’s request for an upgrade of his discharge.

11.  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.

12.  Army Regulation 635-200 governs the separation of enlisted personnel.
In pertinent part, it states that an honorable discharge is a separation
with honor.  The honorable characterization is appropriate when the quality
of the Soldier'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 clearly inappropriate.  Where there
have been infractions of discipline, the extent thereof should be
considered, as well as the seriousness of the offense(s).

13.  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 administrative separation under the provisions of Army
Regulation 635-200, chapter 13 was accomplished in compliance with
applicable regulations with no indication of procedural errors which would
tend to jeopardize his rights.

2.  The applicant's service record shows he received nonjudicial punishment
under Article 15, UCMJ for wrongfully using, possessing, and distributing
some amount of marijuana in the hashish form on 18 May 1984 and for
wrongfully committing sodomy with an unknown male.  Therefore, the
applicant's record of service is insufficiently meritorious to warrant an
honorable discharge.

3.  It appears the chain of command determined that the applicant's overall
military service did not meet the standards for an honorable discharge as
defined in Army Regulation 635-200 and appropriately characterized his
service as general under honorable conditions.
4.  The applicant has failed to show through the evidence submitted or the
evidence of record that the type of discharge issued to him was too harsh.


5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 27 March 1986.  As
a result, the time for the applicant to file a request for correction of
any error injustice to this Board expired on 26 March 1989.  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

SP______  JR______  DH______  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.




                                  Susan Powers__________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002145                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19850205                                |
|DISCHARGE AUTHORITY     |AR635-200, chapter 13 . . . .           |
|DISCHARGE REASON        |Unsatisfactory performance              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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