RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       27 March 2007
      DOCKET NUMBER:  AR20060013342


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Chester A. Damian             |     |Member               |
|     |Ms. Ernestine Fields              |     |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 honorable conditions
(general) be upgraded to an honorable discharge.

2.  The applicant states that a sergeant first class called him a liar and
other inappropriate names in front of the whole supply platoon in a meeting
at the supply office.  He states that the sergeant first class was wrong
about what he claimed he did when, in fact, it was done by the guys across
the hall.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 August 1979.  The application submitted in this case is
dated 12 September 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.  On 24 September 1976, he enlisted in the Army in Omaha, Nebraska, for
3 years, in the pay grade of E-1.  He successfully completed his training
as a stock control and accounting specialist.  Upon completion of his
training, he was transferred to Korea on 7 March 1977.

4.  The applicant was promoted to the pay grade of E-2 on 23 March 1977 and
he was promoted to the pay grade of E-3 on 1 October 1977.

5.  The applicant returned to the Continental United States on 8 March
1978, and he was assigned to the 609th Transportation Company at Hunter
Army Air Field, Georgia.



6.  In an undated memorandum, the applicant's unit commanding officer (CO)
contacted the Commander, 145th Aviation Battalion, requesting a
rehabilitative transfer of the applicant from his unit to a unit under a
different special
court-martial jurisdiction.  According to his CO, the applicant's
performance while he was assigned to the unit had been unsatisfactory as he
had been counseled on seven occasions for being late or missing formation,
and on seven occasions for failure to repair.  The applicant's CO indicated
that he had further counseled the applicant for his apathetic attitude and
the deterioration of his duty performance.  His CO further indicated that
he did not feel that further counseling in the unit to which he was
assigned would be of any benefit toward improving the applicant's attitude
or duty performance.  The CO recommended that the applicant be transferred
outside the 145th Aviation Battalion special court-martial jurisdiction as
the first step toward discharge proceedings under the provisions of Army
Regulation 635-200, chapter 13.

7.  Enclosed with the memorandum to the Commander, 145th Aviation Battalion
were the 14 counseling statements and three records of nonjudicial
punishment (NJP).  According to the records, NJP was imposed against the
applicant on 13 July 1978, for failure to go to his appointed place of
duty.  His punishment consisted of a reduction to the pay grade of E-2, a
forfeiture of pay in the amount of $75.00, and extra duty for 14 days.
According to the memorandum, the second record of NJP that was enclosed
with the memorandum is dated 24 August 1978, and it is unavailable for
review by the Board at this time.  On 31 August 1978, NJP was imposed
against him for failure to go to his appointed place of duty.  His
punishment consisted of correctional custody for 15 days and a forfeiture
of pay in the amount of $50.00.

8.  On 12 October 1978, the applicant was notified that he was being barred
from reenlistment.  His CO cited poor conduct and efficiency along with the
numerous records of counseling and NJP as the basis for the bar to
reenlistment.  The applicant acknowledged receipt of the notification and
he indicated that he had no desire to submit a statement in his own behalf.

9.  The request for rehabilitative transfer of the applicant was approved
and the applicant was assigned to the 132nd Aviation Company on 16 October
1978.  His bar to reenlistment was approved on 25 October 1978.





10.  On 11 July 1979, the applicant was notified that he was being
recommended for discharge from the Army under the provisions of Army
Regulation 635-200, chapter 13, based on his defective attitudes and
inability to expend efforts constructively.

11.  On 18 July 1979, NJP was imposed against the applicant for willfully
disobeying a lawful order.  His punishment consisted of a forfeiture of pay
in the amount of $200.00 per month for 2 months and extra duty for 45 days.

12.  The applicant acknowledged receipt of the recommendation for discharge
on 19 July 1979.  He waived his rights and opted not to submit a statement
in his own behalf.

13.  On 30 July 1979, the appropriate authority approved the recommendation
for discharge.  Accordingly, on 3 August 1979, the applicant was discharged
under the provisions of Army Regulation 635-200, chapter 13, due to apathy,
defective attitudes, and inability to expend efforts constructively.  He
had completed 2 years, 10 months, and 10 days of net active service and he
was furnished a General Discharge Certificate.

14.  A review of the available records fails to show that the applicant
ever applied to the Army Discharge Review Board for an upgrade of his
discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13 contains the policy and
outlines the procedures for separating individuals for unsuitability, and
provides, in pertinent part, that commanders will separate a member under
this chapter when, in the commander's judgment, the member will not develop
sufficiently to participate satisfactorily in further training and/or
become a satisfactory Soldier.

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



3.  The applicant's contentions have been noted.  His contentions are not
supported by the evidence of record.  The evidence of record shows that he
was repeatedly counseled and he had NJP imposed against him numerous times
as a result of his acts of indiscipline.  The available records fail to
show that he physically assaulted a sergeant first class or that he was
ever verbally assaulted by a sergeant first class.  Considering his
numerous acts of indiscipline, it does not appear that his general
discharge is too harsh.

4.  In order to justify correction of a military record the applicant must
show 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 August 1979; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 August 1982.  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

___KLW_  ___E.F.___  ___CD_  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.




                                  _____Kenneth L. Wright_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013342                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070327                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19790803                                |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |CHAPTER 13                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  560  |144.4300/APATHY                         |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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