RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            19 September 2006
      DOCKET NUMBER:   AR20060004137


      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          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas Ray                    |     |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 a general discharge.

2.  The applicant states that he believes that his discharge was unjust
because he had a mental illness that he is now receiving treatment for and
may have began during his service in the Army.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 May 1982.  The application submitted in this case is dated 7
March 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.  He was born on 19 September 1961 and enlisted in Richmond, Virginia on
18 June 1980 for a period of 3 years and training as a food service
specialist.  He underwent all of his training at Fort Jackson, South
Carolina and was transferred to Fort Ord, California for duty as a cook.

4.  On 5 November 1981, nonjudicial punishment (NJP) was imposed against
him for being absent from his place of duty without authority.  His
punishment consisted of a forfeiture of $100.00.

5.  He was advanced to the pay grade of E-3 on 1 April 1981 and on
11 December 1981, he was transferred to a cavalry troop in Schwabach, West
Germany for duty as a cook.

6.  On 28 January 1982, NJP was imposed against him for failure to go to
his place of duty.  His punishment consisted of a reduction to the pay
grade of E-2 (suspended until 28 March 1981), a forfeiture of $100.00 for 2
months (suspended until 28 March 1981) and restriction for 14 days.  The
commander subsequently vacated the suspended punishments and directed that
the punishments be executed.

7.  On 15 March 1982, he was convicted by a summary court-martial of three
specifications of failure to repair and one specification of being absent
without leave (AWOL) from 17 to 19 February 1982.  He was sentenced to be
reduced to the pay grade of E-1, to forfeit $367.00 and confinement at hard
labor for 30 days.

8.  He was transferred to the United States Army Retraining Brigade at Fort
Riley, Kansas on 25 March 1982 to undergo correctional training and
treatment as necessary to return him to duty as a well-trained Soldier with
an improved attitude and motivation.

9.  On 28 April 1982, the applicant’s commander initiated action to
separate the applicant from the service under the provisions of Army
Regulation 635-200, chapter 14, for misconduct due to his involvement in
frequent incidents of a discreditable nature with military authorities.  He
cited as the basis for his recommendation the applicant’s resumption of the
same type of behavior, attitude and ability that had caused him to be sent
to the Retraining Brigade.  He further indicated that the applicant had
failed to respond to numerous counseling sessions and attempts by social
workers, leadership teams and unit cadre to rehabilitate him.  He also
opined that the applicant’s failure to react constructively to the
rehabilitation program were indicative that he should not be retained in
the service.

10.  The applicant underwent a mental status evaluation and was deemed to
be mentally responsible, free of mental defect and able to distinguish
right from wrong and to adhere to the right.

11.  On 4 May 1982, after consulting with defense counsel, the applicant
waived all of his rights.

12.  The appropriate authority approved the recommendation for discharge on
10 May 1982 and directed that he be discharged under other than honorable
conditions.

13.  Accordingly, he was discharged under other than honorable conditions
on 19 May 1982, under the provisions of Army Regulation 635-200, chapter
14, for misconduct due to frequent involvement in incidents of a
discreditable nature with civil or military authorities.  He had served 1
year, 10 months and 6 days of total active service and had 26 days of lost
time due to AWOL and confinement.
14.  On 23 May 1984, the Commonwealth of Virginia, Department of
Corrections submitted a request to the National Personnel Records Center
(NPRC) in St. Louis, Missouri, along with authorization from the applicant
for the NPRC to release the requested information to that agency.  The
request indicated that the applicant alleged that he had served in the Army
from 1980 to 1982 and that he had received a general discharge.  The
request was for confirmation of his service dates, discharge received, and
any disciplinary actions such as court-martials.  The request also
indicated that the applicant had been convicted of petty larceny and
tampering with an automobile in the Petersburg General District Court.

15.  A review of the social worker’s report dated 20 April 1982 indicates
that the applicant’s mental capacity was within the range of normal
intelligence and that while he had the capacity to return to duty, he did
not have the desire to return to duty.  The social worker also indicated
that the applicant had decided to take what he considered to be the easy
way out.

16.  On 17 August 1988, he applied to the Army Discharge Review Board
(ADRB) for an upgrade of his discharge to fully honorable.  He contended at
that time that his discharge was unjust because he suffered from severe
headaches and did not receive adequate treatment while in the service and
that he had a nervous problem which caused him to stay in trouble.

17.  The ADRB noted that during his separation physical/medical examination
he checked the “no” block for severe headaches and there was no mention
anywhere in his records of such complaints for headaches.  The ADRB also
noted that the applicant had completed all of his training, been advanced
to the pay grade of E-3 and had served for 16 months before his misconduct
began, which was indicative that he could serve to Army standards when he
chose to do so.  The ADRB found that his discharge was both proper and
equitable under the circumstances and voted unanimously to deny his request
on 17 March 1989.

18.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions is normally considered appropriate.

19.  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 was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of undistinguished service and his repeated misconduct.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 17 March 1989.  As
a result, the time for the applicant to file a request for correction of
any error or injustice to this Board expired on 16 Match 1992.  However,
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

____JA__  ___ML __  ___TR __  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                 |AR20060004137                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1982/05/19                              |
|DISCHARGE AUTHORITY     |AR 635-200/CH14 . . . . .               |
|DISCHARGE REASON        |MISCONDUCT/FI                           |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |626/A60.00                              |
|1.144.6000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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