RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        26 September 2006
      DOCKET NUMBER:  AR20060004042


      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. Marla Troup                   |     |Chairperson          |
|     |Mr. Chester Damian                |     |Member               |
|     |Mr. Edward Montgomery             |     |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 discharge under other than honorable
conditions be upgraded to honorable.

2.  The applicant states he was retrained and discharged for unfair
reasons.  He states that he was young and did not know he was able to
request a waiver to reenlist.  He further states that he was never
counseled by a military lawyer at the time he was released.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 11 April 1980.  The application submitted in this case is dated
21 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 was born on 5 May 1958.  On 4 April 1979, at age 20, he
enlisted for a period of 3 years.  He successfully completed basic combat
training and advanced individual training (AIT) in military occupational
specialty 19D (cavalry scout).

4.  On 27 April 1979, while in AIT, nonjudicial punishment was imposed
against the applicant for breaking restriction.  His punishment consisted
of a forfeiture of pay, restriction, and extra duty.

5.  On 20 June 1979, while in AIT, nonjudicial punishment was imposed
against the applicant for failure to repair.  His punishment consisted of a
forfeiture of pay and extra duty.

6.  On 26 June 1979, while in AIT, nonjudicial punishment was imposed
against the applicant for failure to repair.  His punishment consisted of a
forfeiture of pay.
7.  On 26 October 1979, contrary to his plea, the applicant was convicted
by a summary court-martial of disobeying a lawful order.  He was sentenced
to perform 45 days of extra duty, to be restricted for 45 days, and to
forfeit $311 pay per month for 1 month.  On 29 October 1979, the convening
authority approved the sentence.

8.  On 17 December 1979, contrary to his pleas, the applicant was convicted
by a special court-martial of three specifications of being absent without
leave (16-19 November 1979, 26-28 November 1979, and 28 (sic) November
1979), and resisting apprehension.  He was sentenced to be confined at hard
labor for
6 months, to forfeit $299 pay per month for 6 months, and to be reduced to
E-1.  The convening authority’s action is not available.

9.  On 21 January 1980, the applicant was sent to the U.S. Army Retraining
Brigade.

10.  On 30 January 1980, nonjudicial punishment was imposed against the
applicant for being derelict in the performance of his duties.  His
punishment consisted of a forfeiture of pay, restriction, and extra duty.

11.  On 4 February 1980, nonjudicial punishment was imposed against the
applicant for breaking restriction.  His punishment consisted of a
forfeiture of pay, restriction, and extra duty.

12.  Between 20 January 1980 and 5 February 1980, the applicant was
counseled on numerous occasions for various infractions which included a
lack of motivation, failure to follow instructions, sleeping on guard,
failed barracks inspection, and manipulating the cadre.

13.  On 15 February 1980, the applicant's unit commander initiated action
to discharge him under the provisions of Army Regulation 635-200, paragraph

14-33 for misconduct due to frequent involvement in incidents of a
discreditable nature with civil or military authorities.  He stated that
the applicant was sent to the Brigade for the purpose of receiving
correctional training and treatment necessary to return him to duty as a
well-trained Soldier with an improved attitude and motivation.  However,
his actions since his arrival precluded the accomplishment of the
objective.

14.  On 4 March 1980, after consulting with counsel, the applicant waived
consideration of his case by a board of officers, waived a personal
appearance, and elected not to submit a statement on his own behalf.  He
also acknowledged that he might expect to encounter substantial prejudice
in civilian life if a general discharge under honorable conditions were
issued and that he further understood that as the result of issuance of a
discharge under conditions other than honorable he might be ineligible for
many or all benefits as a veteran under both Federal and State laws and
that he might expect to encounter substantial prejudice in civilian life.

15.  On 7 March 1980, the separation authority approved the recommendation
for discharge and directed that the applicant be furnished a discharge
under other than honorable conditions.

16.  On 20 March 1980, the unexecuted portion of the applicant’s special
court-martial sentence (confinement at hard labor for 6 months) was
suspended until 26 July 1980.

17.  The applicant was discharged under other than honorable conditions on
11 April 1980 under the provisions of Army Regulation 635-200, paragraph
14-33b(1) for misconduct due to frequent incidents of a discreditable
nature with civil or military authorities.  He had served 8 months and 6
days of creditable active service with 122 days of lost time due to AWOL
and confinement.

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

19.  Army Regulation 635-200, in effect at the time, set forth the basic
authority for separation of enlisted personnel.  Chapter 14, paragraph 14-
33b(1), provided for discharge due to frequent incidents of a discreditable
nature with civil or military authorities.  A discharge under other than
honorable conditions was normally considered appropriate.

20.  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.

21.  Army Regulation 635-200, paragraph 3-7, 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.  Age is not a sufficiently mitigating factor.  The applicant was age 20
when he enlisted.

2.  The evidence of record does not support the applicant’s contention that
he was never counseled by a military lawyer at the time he was released.
Evidence of record shows he consulted with counsel on 4 March 1980 and he
waived his rights.

3.  The evidence of record does not support the applicant’s contentions
that he was retrained and discharged for unfair reasons.  Evidence of
record shows the applicant had three nonjudicial punishments, one summary
court-martial conviction, and one special court-martial conviction prior to
being sent to the Retraining Brigade.  His unit commander cited that he was
sent to the Retraining Brigade for the purpose of receiving correctional
training and treatment necessary to return him to duty as a well-trained
Soldier with an improved attitude and motivation.  The applicant received
two additional nonjudicial punishments while in the Retraining Brigade and
he had 122 days of lost time.  As a result, his brief record of service was
not satisfactory and 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
or general discharge.

4.  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.  He had an opportunity to
submit a statement in which he could have voiced his concerns and he failed
to do so.

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

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 11 April 1980; therefore, the time for the
applicant to file a request for correction of any injustice expired on 10
April 1983.  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

MT_____  _CD_____  __EM____  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.




                                  ___Marla Troup_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004042                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060004042                             |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19800411                                |
|DISCHARGE AUTHORITY     |AR 635-200  Paragraph 14-33b(1)         |
|DISCHARGE REASON        |Misconduct due to frequent incidents of |
|                        |a discreditable nature with civil or    |
|                        |military authorities                    |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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