RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  30 August 2005
	DOCKET NUMBER:  AR20050000981 


	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. Paul Smith

Chairperson

Ms. Yolanda Maldonado

Member

Mr. Leonard Hassell

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 general under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he requested discharge under the provisions of Army Regulation 635-200, paragraph 16-5(d).

3.  The applicant provides a memorandum for the commander of Company C, 1st Battalion, 508th Infantry (Airborne).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 12 July 1988.  The application submitted in this case is dated 23 December 2004.

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.  After having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 2 August 1983.  He served in Germany in duty military occupational specialty (MOS) 11B (Infantryman).  The applicant was promoted to specialist four on 1 November 1985.

4.  The applicant was discharged on 25 March 1986 for the purpose of immediate reenlistment.  He reenlisted on 26 March 1986 for a period of five years.  He was assigned to Panama in February 1987.

5.  On 21 May 1987, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful order and for being disrespectful in language toward a sergeant.

6.  The applicant tested positive for cocaine on 12 July 1987.

7.  During the period April 1987 through September 1987, the applicant received seven adverse counseling statements concerning suspension of his check cashing privileges, failing to make his payments to "DPP" on time, being disrespectful to a sergeant, leaving valuable items unsecured, having a dirty room, having a positive urinalysis, writing a dishonored check, and failing to follow instructions for guard duty.

8.  On 24 September 1987, the applicant accepted nonjudicial punishment under Article 15 for wrongfully using cocaine between 21 June and 21 July 1987.

9.  On 28 September 1987, the applicant's unit commander recommended that a bar to reenlistment be imposed against him for the two nonjudicial punishments under Article 15 he received on 21 May 1987 and 24 September 1987.  The unit commander stated that the applicant had performed in a substandard manner for the past several months, to include several instances of disrespect to his superiors.  In addition, the unit commander stated that the applicant was a bad leadership example to his peers and demonstrated little suitability for retention in the U.S. Army.

10.  On 28 September 1987, the applicant reviewed and acknowledged that he received a copy of the commander’s recommendation and had been advised and counseled of the basis of the action.  He declined to submit a statement in his own behalf.  

11.  The applicant was referred to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) for cocaine abuse on 29 September 1987.

12.  On 13 October 1987, the applicant requested that he be released from active duty under the provisions of Army Regulation 635-200, chapter 16, paragraph 16-5(b) due to his perceived inability to overcome his bar to reenlistment.

13.  He was enrolled into Track II of the ADAPCP on 19 October 1987.

14.  The bar to reenlistment was approved on 4 November 1987.  

15.  The applicant was convicted by a summary court-martial on 11 April 1988 of resisting apprehension, assault, and communicating a threat.  He was sentenced to a forfeiture of $452.00 pay per month for one month, a reduction to the lowest enlisted grade and confinement for 15 days.

16.  On 7 June 1988, he accepted nonjudicial punishment under Article 15 for being disrespectful in language toward his superior noncommissioned officer (NCO) and disobeying a lawful order from his superior NCO.

17.  On 7 June 1988, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12 for abuse of illegal drugs.  He was advised of his rights and acknowledged notification of separation action.  He waived his right to consult with counsel, waived consideration of his case by a board of officers, and did not submit statements in his own behalf.

18.  The unit commander recommended that the applicant be separated from the service prior to his expiration of term of service.  The unit commander cited the basis for the recommendation as the applicant's committing several serious offenses, such as assault and use of illegal drugs, and demonstrating a pattern of misconduct.  The unit commander's recommendation indicated that the applicant was counseled about the consequences of continued actions of misconduct and substandard performance after the bar to reenlistment was approved.  In addition, he had been receiving counseling since enrolled in the ADAPCP due to cocaine abuse.

19.  On 13 June 1988, the separation authority approved the recommendation for discharge and directed that the applicant be issued a General Discharge Certificate.  

20.  The applicant was discharged on 12 July 1988 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct – commission of a serious offense.  He completed 4 years, 11 months and 11 days creditable active service.  

21.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

22.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

23.  Army Regulation 635-200 governs the separation of enlisted personnel.  In pertinent part, it states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows a bar to reenlistment was imposed against the applicant for his nonjudicial punishments under Article 15 for disobeying a lawful order, for being disrespectful in language toward a sergeant, and for wrongfully using cocaine.  

2.  The applicant submitted a request to be discharged under the provisions of Army Regulation 635-200, chapter 16 due to his perceived inability to overcome his bar to reenlistment.  

3.  The applicant's service records show four Article 15s, one summary court-martial and seven adverse counseling statements.  

4.  Considering the nature of the applicant's offenses, it appears the chain of command determined that separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2) for misconduct – commission of a serious offense was appropriate.

5.  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.

6.  After review of the evidence of this case, it is determined that the applicant has not presented sufficient evidence which warrants changing his general discharge to an honorable discharge.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 July 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 July 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

PS______  YM______  LH______  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.




Paul Smith____________
          CHAIRPERSON




INDEX

CASE ID
AR20050000981
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20050830
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19880712
DISCHARGE AUTHORITY
AR635-200,paragraph 14-12c(2)
DISCHARGE REASON
Misconduct-commission of a serious offense
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0000
2.

3.

4.

5.

6.