RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 January 2006
	DOCKET NUMBER:  AR20050001465


	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. Robert J. McGowan

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Thomas M. Ray

Member

Mr. Randolph J. Fleming

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 Discharge (GD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states his punishment was unsuitable because he received only one nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice during his service.  He adds he only had 120 days left on his enlistment and would have willingly served it.

3.  The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 January 2001.  The application submitted in this case is dated
29 September 2004, but was not received for processing until 31 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  The ABCMR has elected to conduct a substantive review of this case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant served in the Regular Army from 3 June 1998 to 31 January 2001.  He held military occupational specialty (MOS) 71L (Administrative Specialist) and served in Korea from November 1998 to November 1999.  He was then reassigned to Fort Gordon, Georgia.

4.  At Fort Gordon, the applicant amassed a lengthy record of indiscipline.  He received NJP on 15 September 2000 for failure to repair (FTR) on 5 September 2000, and on 28 December 2000 for being absent without leave (AWOL) from 18-20 December 2000.  He also received the following disciplinary counseling statements:

	a.  28 January 2000 for FTR.

	b.  1 February 2000 for alleged destruction of Government property.

	c.  9 February 2000 for disobeying orders.

	d.  10 February 2000 for FTR.

	e.  5 April 2000 for missing unit formation.

	f.  21 June 2000 for alleged misappropriation of a fellow Soldier's long distance calling card.

	g.  7 September 2000 for FTR.

	h.  26 December 2000 for FTR.

5.  On 16 January 2001, the unit commander notified the applicant of initiation of separation action under the provisions of chapter 14, Army Regulation 635-200, for a pattern of misconduct.  He was advised of his rights and he consulted with legal counsel.  He did not submit a statement in his own behalf.  The company commander and battalion commander recommended separation with a GD.  The approving authority accepted the recommendations and approved separation with a GD.

6.  On 21 January 2001, the applicant was separated with a GD.  He had 2 years 7 months, and 26 days of creditable service and 2 days of lost time due to AWOL.  The reason for separation was misconduct.

7.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 23 January 2002, denied his request.

8.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.


9.  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 ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the Board 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.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 23 January 2002.  As a
result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 22 January 2005.  The applicant filed within the 3-year statute of limitations.

2.  The applicant clearly demonstrated a pattern of misconduct as documented by two records of NJP and numerous disciplinary counselings.  His discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of military service.

3.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __tmr___  __rjf___  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.



							William D. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20050001465
SUFFIX

RECON

DATE BOARDED
20060105
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
20010121
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
110.0000
2.

3.

4.

5.

6.