RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060009867 


	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.


X
	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, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that although his case was discussed, he does not believe his overall record of service was taken into consideration during his separation processing.  He claims that because he was a black man with great potential, he was unjustly treated and only his two Article 15s were considered at the time of his separation.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 5 June 1987.  The application submitted in this case is dated 6 July 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 record shows he enlisted in the Regular Army and entered active duty on 3 July 1986.  He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Cannon Crewmember), and the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  His disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.   

4.  On 16 January 1987, the applicant accepted NJP for wrongfully communicating a threat to a noncommissioned officer (NCO) to injure him and for disobeying a lawful order from a superior NCO.  His punishment for these offenses was a forfeiture of $178.00, reduction in grade to private/E-2 (PV2), and 14 days extra duty and restriction.
5.  On 7 April 1987, the applicant accepted NJP for being drunk and disorderly and for two specifications of willfully damaging military property.  His punishment for these offenses was a forfeiture of $300.00 per month for two months, reduction to private/E-1 (PV1), and 45 days extra duty and restriction.

6.  On 16 April 1987, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was that the applicant had exhibited an inability to adapt to the constraints of military life.  He further stated that the applicant had been counseled on numerous occasions yet he showed no inclination to reform and continued to be a disruptive influence within the battery.  On 28 April 1987, the appropriate authority approved the bar to reenlistment.  The applicant acknowledged receipt of this action and elected neither to appeal the action nor to submit a statement in his own behalf.  

7.  On 22 May 1987, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of chapter 13, Army Regulation 635-200, for unsatisfactory performance.  The unit commander stated his reason for taking the action was the applicant's receipt of two Article 15s since arriving to the unit, which had no effect in rehabilitating him.  The commander further stated that the applicant lacked the responsibility and motivation to develop into a useful member of the unit.  

8.  On 22 May 1987, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to this counseling, he waived consideration of his case by and personal appearance before an administrative separation board, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.  

9.  On 26 May 1987, the separation authority approved the separation action and directed the applicant receive a GD.  On 5 June 1987, the applicant was separated accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 11 months and 3 days of active military service, and held the rank of PV1 on the date of his separation.  

10.  On 29 December 1988, the Army Discharge Review Board (ADRB), after careful consideration of the applicant's military records and all other available evidence, determined the applicant's discharge was proper and equitable, and it voted to deny his request for a change to the characterization of his service and/or the reason for his separation.  


11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and 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. 

12.  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 applicant's contention that his overall military record was not taken into consideration during his separation processing was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that clearly diminished the quality of his overall record of service below that meriting a fully honorable discharge.  

3.  The evidence of record further confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout his separation process.  

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 29 December 1988, the date his case was last reviewed by the ADRB.  Therefore, the time for him file a request for correction of any error or injustice expired on 28 December 1991.  He failed to file within the 3-year statute of limitations and he 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
X _  __X __  __X__  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.




_____X____
          CHAIRPERSON


INDEX

CASE ID
AR20060009867
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/08
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
1987/06/05
DISCHARGE AUTHORITY
AR635-200 . . .  
DISCHARGE REASON
Unsatisfactory performance
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110
2.

3.

4.

5.

6.