RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        19 October 2006
      DOCKET NUMBER:  AR20060002146


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Merlinda M. Darby             |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 to an honorable discharge.

2.  The applicant states, in effect, that an incident happened when the
Chernobyl Nuclear Plant melted down.  Now that he has read his military
record to support his claim, he feels they were wrong to have given him a
general discharge.

3.  The applicant provides no additional documentation in support of his
request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, as counsel for the applicant, requests that the
applicant's general discharge be upgraded to honorable.

2.  Counsel states, in effect, that the applicant acknowledges that he
made numerous mistakes while attempting to adjust to the standard of
life, but instead earned an unsatisfactory performance discharge because
he became a disciplinary problem to his command.  He regrets these
mistakes that resulted from family and or marital issues, which ended his
military career and has adversely affected his future.

3.  Counsel states, in effect, following careful review of the applicant’s
evidentiary record, they are of the opinion that the issues raised on the
application amply advance his contention and substantially reflects the
probative facts needed for equitable review.  Accordingly, they
regrettably, rest this case on the evidence of record.

4.  Counsel requests that the Board’s final decision reflect sound,
equitable principles consistent in law, regulation, policy, and discretion.


5.  Counsel provides no additional documentation in support of the
applicant’s request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice that
occurred on 5 April 1988, the date of his discharge.  The application
submitted in this case is dated 28 January 2006 but was received for
processing on 10 February 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’s military records show he entered active duty (AD) on
21 January 1986, for training as an infantryman in the military
occupational specialty (MOS) 11X, with prior service in the U.S. Army
Reserve.  At the time of his entry in the Regular Army, the applicant was
23 years, 3 months, and 25 days of age.

4.  The applicant successfully completed basic combat training and advanced
individual training at Fort Benning, Georgia.  On completion of his OSUT
(One Station Unit Training), he was awarded the MOS, 11C, indirect fire
infantryman.

5.  The applicant served in Germany from 16 May 1986 to 4 April 1988.  He
was advanced to pay grade E-2 on 21 July 1986.

6.  On 6 January 1987, the applicant was punished under Article 15, Uniform
Code of Military Justice (UCMJ), while serving in Germany, for failing to
go to his appointed place of duty, for failing to obey a lawful order from
a noncommissioned officer, and for being disrespectful in language and
deportment toward a noncommissioned officer.  His punishment consisted
of a reduction to the pay grade of E-1, a forfeiture of pay, and 14 days
restriction and extra duty.

7.  On 11 February 1987, the applicant was punished under Article 15, UCMJ,
for failing to obey a lawful order from a noncommissioned officer on two
occasions, for failing to go to his appointed place of duty on three
occasions, and for being disrespectful in language toward a noncommissioned
officer.  His punishment consisted of a forfeiture of pay and 7 days
correctional custody.

8.  He was advanced to pay grade E-3, with an effective date of 1 May 1987.

9.  On 17 January 1988, the applicant was punished under Article 15, UCMJ,
for being found drunk while on duty.  His punishment consisted of a
reduction to the pay grade of E-2, a forfeiture of pay, and 30 days extra
duty.
10.  On 29 February 1988, the applicant’s commander notified him that he
was initiating action to separate him from the service under the provisions
of Army Regulation 635-200, chapter 13, for misconduct, unsatisfactory
performance.  He was informed that the least favorable characterization of
service he could receive was a general discharge, under honorable
conditions.   He based his recommendation on the applicant’s disciplinary
problems to the command, his punishment under Article 15, UCMJ, on three
occasions, and failure to show the discipline necessary to continue in the
Army.

11.  After consulting with counsel, the applicant waived his rights and
elected not to submit a statement in his own behalf.

12.  On 15 March 1988, the commander submitted his recommendation to
separate the applicant under the provisions of AR 635-200, chapter 13,
prior to 7his expiration of term of service (ETS).

13.  The separation authority approved the recommendation for the
applicant’s discharge and directed that he be furnished a general discharge
certificate.  The applicant was discharged on 5 April 1988, in the pay
grade of E-1.  He had a total of 2 years, 2 months, and 15 days of
creditable service, this enlistment period.

14.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

15.  In his application to the Board, the applicant refers to the incident
that happened at Chernobyl when a nuclear plant melted down.

16.  An extract from an internet website shows the Chernobyl Nuclear
Disaster occurred in the former USSR (Union of Soviet Socialist Republics-
now Commonwealth of Independent States/now Ukraine) from 25 to 26
April1986.

17.  Item 35 (Record of Assignment), of his DA Form 2-1 (Personnel
Qualification Record - Part II), shows that he was enroute to Europe on 25
April 1986.

18.  Army Regulation 635-200 sets forth the requirements and procedures for
administrative discharges of enlisted personnel.  Chapter 13 of this
regulation, in effect at the time, provided for the separation of Soldiers
due to their unsatisfactory performance when in the commander’s judgment
the individual would not become a satisfactory Soldier; retention would
have an adverse impact
on military discipline, good order and morale; the service member would be
a disruptive influence in the future; the basis for separation would
continue or recur; and/or the ability of the service member to perform
effectively in the future, including potential for advancement or
leadership, was unlikely.  Service of Soldiers separated because of
unsatisfactory performance under this regulation would be characterized as
honorable or under honorable conditions.

19.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge proceedings appear to have been conducted in
accordance with law and regulations applicable at the time of his
separation.

2.  The type of separation directed and the reasons for that separation
were appropriate considering all of the facts of the case.  There is no
indication that the applicant’s request for discharge was made under
coercion or duress.

3.  The applicant has provided no evidence to show that his discharge was
unjust.  He also has not provided evidence sufficient to mitigate the
character of his discharge.

4.  The applicant made mention of an incident that occurred when the
Chernobyl Nuclear Plant melted down.  His records show that he was
enroute to Europe on 25 April 1986.  A review of the extract from the
Internet, pertaining to the Chernobyl Nuclear Disaster, shows that the
melt down occurred during the period from 25 to 26 April 1986. The
applicant did not state nor explain how this incident affected his
ability to conduct himself in a "Soldierly manner" and abide by the oath
that he took when he enlisted in the Regular Army and how the incident
should be considered by the Board in arriving at a decision on his
request for an upgrade of his general discharge.

5.  There is no evidence in the applicant’s records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

6.  The applicant’s counsel indicated that the applicant acknowledged that
he made numerous mistakes while attempting to adjust to the standard of
life, but instead earned an unsatisfactory performance discharge because he
became a disciplinary problem to his command.  He regretted these mistakes
that resulted from family and or marital issues, which ended his military
career and had adversely affected his future.  However, the evidence shows
that the applicant was over the age of 23 at the time he entered active
duty.  He was old enough to know right from wrong and the consequences that
went along with his misconduct.

7.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 April 1988; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 4 April 1991.  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

__MMD__  ___JCR_  __RDG __  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.




                                  _____Merlinda M. Darby____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060002146                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061019                                |
|TYPE OF DISCHARGE       |G                                       |
|DATE OF DISCHARGE       |19880405                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 13. . . . .            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]