RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 OCTOBER 2005
	DOCKET NUMBER:  AR20050001208 


	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. Rene’ R. Parker

Analyst

The following members, a quorum, were present:


Mr. Mark Manning

Chairperson

Mr. Larry Bergquist

Member

Ms. Carmen Duncan

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 his general discharge be upgraded to an honorable discharge.

2.  The applicant states that his record indicating he was absent without leave (AWOL) is misleading.  He maintains that he did not want to get out of the service.  He explains that he showed up for duty after midnight, and therefore, he should have not been charged with one day of AWOL.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 4 August 1988, the date of his separation from active duty.  The application submitted in this case is dated 10 January 2005.

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’s record shows he enlisted in the Regular Army and entered active duty on 11 July 1986.  He was trained in, awarded, and served in military occupational specialty (MOS) 91A10 (Medical Specialist).  

4.  On 22 May 1987, nonjudicial punishment was imposed against the applicant for being AWOL.  The Article 15 verifies that the applicant absented himself from the unit on or about 0630 hours 16 May 1987 and remained absent until 2400 hours 17 May 1987.  His punishment consisted of reduction to the grade of private/E-1, suspended for six months, forfeiture of $150.00 for one month,        14 days restriction, and 14 days extra duty.

5.  On 10 July 1987, nonjudicial punishment was imposed against the applicant for failure to obey a lawful order and two specifications of failure to go to his appointed place of duty.  His punishment consisted of forfeiture of $329.00 per month for two months and confinement in correctional custody for 30 days.

6.  On 18 May 1988, the applicant was convicted by a summary court-martial for disobeying a lawful order by a commissioned officer, disobeying a lawful regulation, and possession of marijuana.  His punishment consisted of forfeiture of $447.00 for 1 month and confinement for 30 days.

7.  On 16 June 1988, the applicant underwent a mental status evaluation by a Medical Service Corps captain in the position of Chief of Psychology.  The captain psychiatrically cleared the applicant for any administrative actions as deemed appropriate by the command.

8.  On 17 June 1988, the unit commander notified the applicant of the proposed discharge action for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13.  He cited the applicant’s record of indiscipline as the reason for separation.  The commander stated that he was recommending the applicant for a general discharge.  However, he said the final decision rests with the approving authority.

9.  On 17 June 1988 the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers and a personal appearance before a board of officers.  He requested representation by counsel and/or civilian council at no expense to the Government.  He elected not to submit statements on his behalf.

10.  The applicant acknowledged that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions is issued.  He also acknowledged that if he received a discharge certificate/character of service which is less than honorable, he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, he realized that an act of consideration by either board does not imply that his discharge will be upgraded.

11.  On 17 June 1988, the unit commander forwarded the recommendation for the applicant's separation under the provisions of Army Regulation 635-200 chapter 13, unsatisfactory performance, to the Commander, Headquarters, US Army Personnel Control Facility (PCF), 2d Armor Training Brigade, US Army 
Armor Center, Fort Knox, Kentucky.  The commander recommended the applicant be discharged from the service with a General Discharge Certificate.

12.  On 27June 1988 the PCF Commander recommended that the applicant be discharged for unsatisfactory performance and with a general discharge. 

13.  On 1 July 1988, the colonel in command of the 2d Armor Training Brigade at Fort Knox, Kentucky, approved the request for waiver of rehabilitative requirements.  Additionally, he directed the discharge under the provisions of Army Regulation 635-200, chapter 13, unsatisfactory performance, with a General Discharge Certificate.  

14.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that the applicant was discharged under honorable conditions on 4 August 1988.  The narrative reason for separation is listed as unsatisfactory performance.  The applicant’s record indicates that he had 2 years and 1 day of creditable service.

15.  There is no indication in the record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations of that board.  

16.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

17.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  Army Regulation 600-8-6 (Personnel Accounting and Strength Reporting) defines absent-without-leave as Soldiers who are absent from a place of duty without permission or authorization for more than 24 hours. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the discharge should be upgraded so he can reenter the Armed Forces.  

2.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time and that the type of discharge directed and the reasons for separation were appropriate considering all of the evidence of record. 

3.  There are no provisions in the Army regulation for upgrading the applicant’s discharge for the sole purpose of reentry in the Armed Forces.  If the applicant wishes to reenter military service, he should consult with a local recruiting official. 

4.  The applicant also contends that his record indicating he was AWOL is misleading.  He explains that he showed up for duty after midnight and therefore, was charged with one day of AWOL.  

5.  As defined by the regulation, any unauthorized absence for more than 24 hours is considered AWOL.  The applicant received an Article 15 for being absent from his unit for more than 24 hours and there is no evidence which indicates that the Article 15 was imposed erroneously.  In view of these facts, the applicant’s contention that his AWOL is misleading is insufficient as a basis to upgrade his discharge.

6.  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.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 August 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on           3 August 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

___MM__  ___LB  __  ___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.




______Mark Manning_______
          CHAIRPERSON




INDEX

CASE ID
AR20050001208
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20051004
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.00
2.

3.

4.

5.

6.