RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060011261 


	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. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Edward Montgomery

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 at the time of his service he was young and immature.  He further states that he had three honorable discharges prior to separation from active duty and that his conduct and proficiency ratings were good.  The applicant states that his personal problems impaired his ability to serve and that his Article 15s indicate only isolated and minor offenses.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the period ending 7 March 1988; various documents from his military records (i.e. Enlisted Evaluation Reports, Letters of Appreciation, Certificates of Training, and College Transcripts); and a Criminal Records Check from the Iberville Parish Sheriff Department, dated 20 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 7 March 1988.  The application submitted in this case is undated; however, was received on 10 August 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.  On 20 March 1958, the applicant was born.  He enlisted in the Regular Army on 15 March 1976 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 91B (Medical Specialist).  On January 1981, the applicant was advanced to the rank of Specialist Five (SP5)/E-5.  He had three honorable discharges for immediate reenlistment before his reenlistment of 18 September 1985.




4.  On 8 October 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to obey a lawful order.

5.  On 12 March 1987, the applicant accepted NJP under Article 15, UCMJ for failure to obey a lawful order.

6.  On 10 June 1987, the applicant accepted NJP under Article 15, UCMJ for operating a passenger vehicle while drunk.

7.  A DA Form 4126-R (Bar to Reenlistment Certificate), approved on 28 July 1987, shows the applicant was barred from reenlistment for violation of ration privileges, for being relieved of duties as section Noncommissioned Officer (NCO), for failure to obey orders, for having slow grade progression, and for mediocre duty performance. 

8.  On 30 July 1987, the applicant accepted NJP under Article 15, UCMJ for driving a vehicle with a suspended license.

9.  A DD Form 458 (Charge Sheet), dated 3 November 1987, shows charges were preferred against the applicant for stealing lawful currency of a value of $774.54, the property of American Express, and for being absent without leave (AWOL) during the period 14 September 1987 through 13 October 1987.

10.  A DD Form 458, dated 15 December 1987, shows additional charges were preferred against the applicant for being AWOL during the period 23 November 1987 through 25 November 1987 and for unlawfully transferring goods acquired at Army, Air Force Exchange Service (AAFES) under duty-free privileged conditions.

11.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an Under Other Than Honorable Conditions Discharge.  He did not submit a statement in his behalf.


12.  On 4 February 1988, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200.  On 7 March 1988, he was discharged with an under other than honorable conditions discharge.  He completed 8 years, 11 months, and 14 days of creditable active service on his current enlistment with 31 days of lost time due to AWOL. 

13.  Army Regulation 635-200 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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

14.  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.

15.  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 he was young and immature at the time of his misconduct.  However, records show that the applicant was 17 years, 11 months, 25 days at the time he entered active duty.  He was 28 years, 6 months, and
18 days old at the time of his first offense and 29 years, 11 months, and 17 days old at the time of his discharge and by then should have been well aware of the Army's standards of conduct.  Therefore, his contention that he was young and immature at the time of his offenses does not mitigate his indiscipline in the Regular Army.

2.  The applicant further contends that his conduct and efficiency ratings were good prior to his discharge.  However, evidence of record shows that he was barred from reenlistment for violation of ration privileges, relieved of duties as section NCO, he had slow grade progression, and his duty performance was mediocre.

3.  Evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking 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 four Article 15s and had two instances of AWOL during his last enlistment.  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 or general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 March 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
6 March 1991.  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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JEA __  __JLP___  ___EM__  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. James E. Anderholm __
          CHAIRPERSON
































INDEX

CASE ID
AR20060011261
SUFFIX

RECON

DATE BOARDED
6 FEBRUARY 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. CHUN
ISSUES         1.
144.9407.0000
2.

3.

4.

5.

6.