RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060005689


      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:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Dennis J. Phillips            |     |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 under other than honorable conditions
discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the reason he did not receive an
honorable discharge was because he made a stupid mistake by following the
negative influence from his peers.  The U.S. Army extended his contractual
obligation in order to process him for a discharge.

3.  He further states that since his discharge, he graduated from college,
he has improved his behavior, and has paid the penalty of shame for the
manner he left the military.

4.  The applicant did not provide any additional documentary evidence in
support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 May 1990, the date of his discharge from active duty.  The
application submitted in this case is dated 29 February 2006; however, it
was received on  
20 April 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 he enlisted on 16 September 1982.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B1O (Infantryman).

4.  He served with Company A, 2nd Battalion, 327th Infantry Regiment, 101st
Airborne Division (Air Assault), Fort Campbell, Kentucky.  His records show
that while he was assigned to Fort Campbell, Kentucky, he received a Letter
of Reprimand signed by a general officer for a civil conviction on 15
August

1988, for driving under the influence of alcohol.  Within the Letter of
Reprimand it states "Any future deviation from the standards of conduct
established by this command will result in serious action against you."

5.  On 24 April 1990, charges were preferred against the applicant for
wrongful use of marijuana, a schedule II controlled substance.

6.  On 25 April 1990, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an under other than honorable conditions discharge, and of the
procedures and rights that were available to him.  Subsequent to receiving
this legal counsel, the applicant voluntarily requested discharge for the
good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he
understood that by requesting discharge, he was admitting guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, he
could be deprived of many or all Army benefits, that he could be ineligible
for many or all benefits administered by the Department of Veterans Affairs
(VA), and that he could be deprived of his rights and benefits as a veteran
under both Federal and state law.  He also
acknowledged that he understood that he may expect to encounter substantial
prejudice in civilian life by reason of an under other than honorable
conditions discharge.

8.  On 30 April 1990, the separation authority approved the applicant’s
request for discharge and directed that he receive an under other than
honorable conditions discharge.

9.  On 3 May 1990, the applicant was discharged accordingly.  The DD Form  
214 he was issued confirmed he completed a total of 7 years, 7 months, and
 
18 days of creditable active military service.

10.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statue of limitations.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic
authority for the separation of enlisted personnel.  Chapter 10 of that
regulation provides, in pertinent part, that a member who has committed an
offense or
offenses for which the authorized punishment includes a punitive discharge
may at any time after the charges have been preferred, submit a request for
discharge
for the good of the service in lieu of trail by court-martial.  A discharge
under other than honorable conditions is normally considered appropriate.

12.  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.

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 contends that his under other than honorable conditions
discharge should be upgraded to an honorable discharge.

2.  His statement concerning the completion of a college education and his
improved behavior is noted; however, his post-service achievements are not
sufficient for upgrading a properly issued discharge.

3.  In order to justify correction of a military record the applicant must,
or it must otherwise satisfactorily appear, that the record is in error or
unjust.  The applicant has failed to submit evidence that would satisfy
that requirement.  Therefore, he is not entitled to correction of his
records to show a honorable discharge.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 May 1990; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 May 1993.  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

___jtm___  ___sap__  ___djp__  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.




                                  _________John T. Meixell___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005689                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|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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