RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2007
	DOCKET NUMBER:  AR20060008895 


	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 the character and reason for his discharge be changed.  

2.  The applicant states that his general discharge (GD) was warranted.  The applicant admits to having made major mistakes while on active duty and considers these actions to be the "biggest blunder" of his life.  Since his discharge he has attended college, graduating with a degree in nursing, and is working as a firefighter and part-time nurse.  He requests that his good post service accomplishments be considered and he be granted the corrections based on his post service life.

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 24 December 1990, the date of his discharge.  The application submitted in this case is dated 23 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 records show the applicant entered active duty on 12 October 1988, completed training, and was awarded the military occupational specialty (MOS) 16S1O (Man Portable Air Defense Systems (MANPADS) Crewman). 

4.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on: 

	a.  1 February 1990, for operating a motor vehicle while intoxicated;  

	b.  30 May 1990, for using disrespectful language towards an noncommissioned officer (NCO) and reporting for duty intoxicated; 
	c.  5 September 1990, for failure to go to his appointed place of duty on two occasions; and

	d.  21 November 1990, for using disrespectful language towards an NCO.

5.  On 7 February 1990 a letter of reprimand was issued by the base commander for the applicant's repeated misconduct.

6.  The applicant received several negative counseling statements as follows:

	a.  12 January 1990 for failure to follow instructions on two occasions, failure to follow a direct order, and for being disrespect towards a NCO; 

	b.  30 May 1990 for the possible elimination from the service for unsatisfactory performance and misconduct;

	c.  9 July 1990 for behavior interfering with his job performance off duty (alcohol related behavior).  The reporting NCO indicated he was attempting to enroll the applicant in an alcohol rehabilitation program;

	d.  6 August 1990 for negative duty performance during the previous month, a pending NJP action, and failure to report for guard mount on time.  The reporting NCO reprimanded him for his personal appearance and indicated he was recommending that separation proceedings be initiated.  The reporting NCO also indicated he was still attempting to enroll the applicant in an alcohol rehabilitation program;

	e.  4 September 1990 for his negative off duty conduct and its interference with his job performance;  

	f.  5 September 1990 he was counseled about possible elimination under Army Regulation 635-200, chapter 13, unsatisfactory performance, or chapter 14, misconduct, and the negative consequences of a discharge under either of these chapters; and

	g.  3 November 1990 for being disrespect towards a NCO and failure to follow instructions.

7.  On 11 December 1990 the applicant's unit commander initiated separation proceeding under Army Regulation 635-200, chapter 13 for unsatisfactory performance.

8.  The applicant acknowledged the proposed action and waived his rights to have his case reviewed by an administrative separation board.  He also waived further counsel, and declined to make a statement on his own behalf. 

9.  The discharge authority approved the recommendation for elimination and directed he be discharged under honorable conditions. 

10.  The applicant was discharged on 24 December 1990 with a GD.  He had completed 2 years, 2 months, and 13 days of creditable active duty.

11.  On 2 December 1996 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel on active duty.  Chapter 13, outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier. 
	
13.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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 discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.





2.  The applicant’s statements about his post service education, employment, and his development of a sense of responsibility are noted.  However, aside from being completely unsubstantiated, these activities are not so exceptionally meritorious as to outweigh the offenses that resulted in his discharge.  This is especially so considering the fact that based on the nature of his actions he was also considered for separation for misconduct.

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.

4.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 2 December 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 1 December 1999.  However, 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
AR20060008895
SUFFIX

RECON

DATE BOARDED
20070313
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19901224
DISCHARGE AUTHORITY
AR 635-200, CH 13. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.