RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        24 October 2006
      DOCKET NUMBER:  AR20060005026


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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, in effect, that his general discharge be
upgraded to honorable.

2.  The applicant states, in effect, that at his court-martial (sic) he was
told he would be allowed to remain in the Army for the two years that he
was automatically reenlisted for but instead he was released with a general
discharge two months later.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 July 1991.  The application submitted in this case is dated
10 January 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 enlisted on 26 February 1987 for a period of 3 years.  He
successfully completed basic combat training and advanced individual
training in military occupational specialty 68M (aircraft weapons systems
repairer).

4.  On 8 February 1990, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) for 2 days (no dates
available).  His punishment consisted of a reduction to E-1, a forfeiture
of pay, and extra duty.

5.  On 3 March 1990, a bar to reenlistment was imposed against the
applicant.

6.  On 17 September 1990, the applicant was convicted of burglary by civil
authorities and sentenced to 1 to 12 months probation.

7.  On 2 October 1990, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 14, for civil
conviction.

8.  On 16 November 1990, the applicant requested consideration of his case
by a board of officers.  A board of officers convened on 20 February 1991
to determine whether the applicant should be eliminated from the service
because of conviction by civil court.  The board recommended that the
applicant be separated from active service with a general discharge.
However, it also recommended that he be rehabilitatively transferred; that
he be given a probationary period of not less than 6 months and not to
exceed one year to demonstrate successful rehabilitation and continuing
satisfactory military performance; and that the bar to reenlistment remain
in place during the probationary period.

9.  On 10 April 1991, the applicant extended his enlistment for a period of

7 months.

10.  On 14 May 1991, the separation authority approved the findings and
recommendations of the board of officers with the exception of the
rehabilitation transfer, probationary period, and the board’s
recommendation that the bar to reenlistment remain in effect.

11.  The applicant was discharged with a general discharge on 3 July 1991
under the provisions of Army Regulation 635-200, chapter 14, for misconduct
due to civil conviction.  He had served 4 years, 4 months, and 8 days of
total active service.  His DD Form 214 (Certificate of Release or Discharge
from Active Duty) does not show any lost time.

12.  On 12 March 1997, the Army Discharge Review Board (ADRB) denied the
applicant’s request for an honorable discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  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, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a Soldier discharged under this chapter.

14.  Army Regulation 635-200, 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.

15.  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 (Army Regulation 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 ABCMR 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.  The applicant’s contentions were noted.  However, evidence of record
shows the applicant appeared before a board of officers, not at a court-
martial.  Evidence of record also shows the board of officers recommended
that he be given a probationary period (not less than 6 months, not to
exceed one year) to demonstrate successful rehabilitation and continuing
satisfactory military performance; however, the approval authority was not
bound by that recommendation and he did not approve this recommendation.

2.  The applicant’s record of service included one nonjudicial punishment
and two days of lost time.  He also committed a serious civil offense while
in the Army.  As a result, his record of service did not meet the standards
of acceptable conduct and performance of duty for Army personnel.
Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

3.  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.

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

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 12 March 1997.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to

this Board expired on 11 March 2000.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

CD_____  __JP____  _RN_____  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.




                                  ____Carmen Duncan_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005026                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061024                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19910703                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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