RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 February 2007
	DOCKET NUMBER:  AR20060009596 


	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. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. Hubert O. Fry Jr.

Chairperson

Mr. William F. Crain

Member

Mr. Dale E. DeBruler

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 from (general) under honorable conditions to an honorable discharge.

2.  The applicant states, in effect, he was under the impression that his discharge was supposed to turn into an honorable discharge after six months.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 18 October 1990.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 18 October 1990.  The application submitted in this case is dated 30 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 Regular Army on 1 October 1985 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman).  The applicant was honorably discharged on 11 July 1988 for the purpose of immediate reenlistment on 12 July 1988.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of general counseling statements on the following dates:  17 April 1990 for being absent without leave from duty; 8 May 1990 for disrespect, unsatisfactory performance, failure to repair, and unacceptable attitude; and 
21 June 1990 for failure to obey a lawful order, threat of physical abuse towards a Noncommissioned Officer (NCO), and disrespect to an NCO.

5.  On 28 June 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to obey a lawful order.  

6.  On 20 August 1990, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 14 for misconduct – patterns of misconduct.  The reason cited by the commander was the applicant’s numerous general counselings and his receiving an Article 15 for disobeying a lawful order.  The applicant was advised of his rights and the commander recommended the applicant receive a general discharge.

7.  On 26 September 1990, the applicant underwent a mental evaluation by a medical physician who determined that he could distinguish right from wrong and that he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings.

8.  On 5 October 1990, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  He stated that he had been harassed and mistreated by his chain of command.  The applicant further stated that he went to his battalion Sergeant Major and the Community Inspector General (IG) to get the situation corrected, but all of them failed him.  He stated it was after his case was referred to the 1st Armored Division IG and State representatives that his company started his separation proceedings.

9.  On 11 October 1990, the appropriate authority approved the elimination packet and waiver of the rehabilitative transfer requirement and directed the applicant receive a general under honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 
18 October 1990, the applicant was separated from the service, in pay grade 
E-3, after completing 2 years, 3 months, and 7 days of creditable active service on his second enlistment with no lost time.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 9 May 1994, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as (general) under honorable conditions.

11.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

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.  

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 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. 

14.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that he was under the impression that his discharge was supposed to turn into an honorable discharge after six months, there is no policy or regulation within the Army which allows automatic upgrading of discharges.  

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.
4.  The applicant's records show that he received an Article 15 and had several negative counselings.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 May 1994, the date of the ADRB action; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 May 1997.  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

__HOF __  __WFC  _  __DED _  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.




____ Mr. Hubert O. Fry Jr.__
          CHAIRPERSON



INDEX

CASE ID
AR20060009596
SUFFIX

RECON

DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
Mr. CHUN
ISSUES         1.
144.0135.0000
2.
144.0154.0000
3.

4.

5.

6.