RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        January 9, 2007
      DOCKET NUMBER:  AR20060008906


      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:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |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 he be restored to active duty.

2.  The applicant states he was provoked and he should not have been
discharged because of the one infraction in which he was found guilty.  He
was a platoon guide and his service was excellent up to that point.  He
states he should not have received the Article 15 that resulted in his
discharge because of circumstances beyond his control.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation
from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 8 August 1977.  The application submitted in this case is dated
14 June 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 6 June 1977 for a period
of three years.  He was assigned to Fort Leonard Wood, Missouri for basic
combat training.

4.  The applicant received Trainee Discharge Program Counseling on 28 June
1977.  The unit counselor indicated the applicant had shown some difficulty
in cooperating with his peers and in following instructions.  The unit
counselor further indicated the applicant had not shown improvement as a
result of initial counseling and the applicant was given an Article 15 for
willfully refusing to pull security guard duty when scheduled.  The unit
counselor recommended counseling by the company commander and consideration
for possible discharge.

5.  The company commander counseled the applicant on 3 July 1977 on his
poor record of conduct and performance.  At that time, the company
commander advised the applicant that he must meet standards of motivation
and
self-discipline if he intended to graduate from basic combat training.  The
company commander recommended the applicant be transferred to the third
platoon for further counseling and evaluation.

6.  On 11 July 1977, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in
the performance of his duties by sleeping on duty as security guard of the
company barracks.  His punishment consisted of a forfeiture of $75.00 pay
per month for one month.

7.  On 23 July 1977, the applicant accepted nonjudicial punishment under
Article 15, UCMJ for assault upon another private E-1.  His punishment
consisted of a forfeiture of $87.00 pay per month for one month.

8.  The applicant was counseled again on 24 July 1977 by the unit
counselor.  He indicated that the applicant had continued to perform below
standard in the area of self-discipline and had received his second Article
15.  The unit counselor indicated that the applicant had requested to get
out of the Army because he could not cope with the restrictions of Army
life.  The company commander recommended that the applicant be discharged
for the good of the service because his record indicated he would never
become a productive Soldier.

9.  The applicant’s unit commander notified him of initiation of separation
action under the provisions of Army Regulation 635-200, paragraph 5-39, for
marginal or non-productive performance (Trainee Discharge Program) on 29
July 1977. The unit commander indicated that the applicant lacked the
minimum amount of motivation and self-discipline to successfully complete
basic combat training.  He also indicated the applicant had been counseled
numerous times in an effort to improve his substandard performance and bad
attitude, but he had made no effort to respond.

10.  The applicant elected to waive his right to consult counsel, declined
to submit statements in his own behalf, and declined to undergo a
separation physical.

11.  On 4 August 1977, the separation authority directed that the applicant
be discharged from the service under the provisions of Army Regulation 635-
200, paragraph 5-39 for marginal or non-productive performance (Trainee
Discharge Program) with an honorable discharge.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s service records show he received nonjudicial punishment
under Article 15, UCMJ on two separate occasions, one for being derelict in
the performance of his duties and one for assault upon another private E-1.


2.  The applicant was counseled numerous times regarding his poor record of
conduct and performance.  During one of his counseling sessions, the unit
counselor indicated that the applicant had requested to get out of the Army
based on his inability to cope with the restrictions of Army life.

3.  It appears the chain of command determined that the applicant should be
discharged for the good of the service based on his lack of improvement in
conduct and performance.  As a result, he was appropriately separated under
the provisions of Army Regulation 635-200, paragraph 5-39 based on marginal
or non-productive performance (Trainee Discharge Program).

4.  Therefore, there is no basis for restoring the applicant to active
duty.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 August 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 7 August 1980.  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________  JP______  SF______  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                 |AR20060008906                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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