RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060008714 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. Paul M. Smith

Member

Mr. Jerome L. Pionk

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 honorable.

2.  The applicant states he was 32 years old when he entered active duty and that he helped more people than he hurt.  He states that his awards prove this statement and that he was only one month away from completing his two year obligated period of service.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 November 1988, the date of his discharge.  The application submitted in this case is dated 8 June 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 in the Army Reserve (USAR) on 23 December 1986 under the Delayed Entry Program (DEP) with a three year active duty obligation. He entered active duty on 10 February 1987, at age 32, completed training, and was awarded military occupational specialty (MOS) 75B1O (Personnel Administrative Specialist).

4.  Headquarters, 101st Airborne Division Permanent Orders 002-088, dated 5 January 1988, awarded the applicant the Army Achievement Medal.

5.  On 12 January 1988 the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCML), for illegal drug usage.  The NJP proceedings are not in the available record.

6.  On 31 August 1988 the applicant's security clearance was suspended. 

7.  On 12 October 1988, the applicant's command initiated separation proceedings under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct.  The separation recommendation indicates that, in addition to the applicant's NJP, he reported late for duty on four separate dates, and failed to go to his appointed place of duty on three occasions.  Other than the notation in the separation recommendation, there is no documentation of any disciplinary actions that may have been or any additional offenses.  

8.  The discharge authority approved the discharge recommendation and directed the applicant be separated with a GD.

9.  The applicant was discharged on 18 November 1988 with a GD for misconduct, commission of a serious offense.  He completed 1 year, 9 months and 8 days of creditable service.

10.  The applicant’s DD Form 214, issued on 18 November 1988 lists his awards as the Army Achievement Medal, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 

	a.  Chapter 3 outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states:  “A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Art l5.” “It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service.”  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge may be issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  


	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12b authorizes separation for a pattern of misconduct consisting solely of minor military disciplinary infractions; commission of a serious offense; discreditable involvement with civil or military authorities; discreditable conduct or conduct prejudicial to good order and discipline, including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs.  A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  

2.  Both the applicant's reason for discharge and the characterization of service were appropriate considering the facts surrounding the discharge.  The applicant has established no basis for the upgrade of his discharge to that of fully honorable.

3.  The applicant’s contentions regarding post service conduct and accomplishments were noted, however, he has provided no evidence concerning post service conduct.

4.  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.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 November 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 November 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

__JLP___  __WDP__  __PMS __  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.




__    William D. Powers______
          CHAIRPERSON


INDEX

CASE ID
AR20060008714
SUFFIX

RECON
 
DATE BOARDED
20070313 
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19881118
DISCHARGE AUTHORITY
AR 635-200, CH 14 . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.