RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 November 2006
      DOCKET NUMBER:  AR20060004847


      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. Dean L. Turnbull              |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Robert Rogers                 |     |Member               |
|     |Ms. Ernestine I. 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 be upgraded to honorable.

2.  The applicant states, in effect, that he was told that six months after
his discharge from active duty, his character of service would be upgraded
to honorable.

3. The applicant provides a copy of his DD Form 214 (Certificate of Release
or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 April 1989, the date of his discharge from active duty.  The
application submitted in this case is dated 23 March 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's records show that he entered active duty on 15 April
1987.  He completed basic combat training and advanced individual training,
and was awarded the military occupational specialty 94B10 (Food Service
Specialist).  He was assigned to the U.S. Army Correctional Activity, Fort
Riley, Kansas during the period 27 August 1987 to 28 February 1989.

4.  He was absent without leave (AWOL) during the period 1 January 1989 to
 
13 January 1989.  Also, he was AWOL during the period 18 January 1989 to  
23 February 1989.

5.  On 2 March 1989, the applicant was convicted by a Summary Court-Martial
for two specifications of AWOL.  He was sentenced to confinement for 30
days, forfeiture of 2/3 pay ($466.00) for one month, and reduction to
Private/pay grade E-1.


6.  On 13 March 1989, he received notification that he was being considered
for separation under the provisions of Army Regulation 635-200, Chapter  
14, paragraph 14-12c for misconduct-commission of a serious offense.  He
was advised of the rights available to him and the effects of a discharge
under honorable conditions.  Also, he was informed that he would be
ineligible to apply for enlistment in the United States Army for a period
of two years after discharge, and that "I may make application to the Army
Discharge Review Board or the Army Board for Correction of Military Records
for upgrading; however, I realize that an act of consideration by either
board does not imply that my discharge will be upgraded."

7.  On 7 April 1989, his commander recommended that he be discharged under
the provision of AR 635-200, for Chapter 14, paragraph 14-12c.  On 7 April
 
1989, the recommendation for separation was approved by the appropriate
authority.

8.  On 12 April 1989, the applicant was given a general discharge from
active duty for misconduct-commission of a serious offense.  He had
completed 1 year, 9 months, and 16 days of active service and accrued 71
days time lost.

9.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 14-12c applies to the
separation of individuals who committed a serious military or civil
offense, if the specific circumstance of the offense warrant separation and
a punitive discharge would be authorized for the same or a closely related
offense under the manual for courts-martial. An absentee returned to
military control from an AWOL or desertion status may be separated for
commission of a serious offense.  Commander may consider soldiers meeting
the above criteria and convicted by court-martial, but not sentenced to a
punitive discharge, for administrative separation under this provision when
the underlying misconduct warrants separation.

11.  Army Regulation 635-200 (Personnel Separation), paragraph 3-7a,
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.

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a Soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the Soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his discharge be upgraded to honorable.

2.  The applicant's discharge was processed in accordance with the
applicable regulations in effect at the time with no indication of any
error which may have affected the rights of the applicant.

3.  His discharge was accomplished in compliance with applicable
regulations and there is no indication of procedural errors or injustice
that would tend to jeopardize his rights.  The evidence provides sufficient
basis for an under honorable conditions discharge for misconduct-commission
of a serious offense. The applicant's records show that his service was not
satisfactory; therefore, he is not entitled to an honorable discharge.

4.  While the applicant has stated he was told his discharge would be
automatically upgraded in six months, there is no evidence or indication of
this in his records.  To the contrary, the applicant was specifically told
that consideration of a request for discharge upgrade does not imply that
his discharge would be upgraded.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 April 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on  
11 April 1992.  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

___mkp__  ___eif___  ___rr____  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.




                                  _________Margaret K. Patterson_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004847                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/11/09                              |
|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.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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