RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	22 March 2007  
	DOCKET NUMBER:  AR20060011667 


	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.



	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 request, in effect, that his general (under honorable) discharge be upgraded to honorable.

2.  The applicant states, in effect, that he feels he has been a law abiding citizen for the past 15 years and served his country in an honorable fashion.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 22 June 1989.  The application submitted in this case is dated 6 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.  The applicant enlisted in the United States Army Reserve on 9 July 1986.  On 2 June 1987, the applicant enlisted in the Regular Army for 4 years.  He completed his basic combat training at Fort Dix, New Jersey, and his advanced individual training at Fort Belvoir, Virginia.  After completing all required training, he was awarded the military occupational specialty (MOS), 81C (Cartographer).  On completion of his training, he was assigned to Hawaii as a first duty station.

4.  The applicant was advanced to the rank of private, pay grade E-2, on 2 December 1987, and was promoted to the rank of private first class, pay grade E-3, on 1 February 1988.

5.  On 12 January 1989, the applicant received non-judicial punishment under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for making and uttering to the Hawaii Area Exchange a certain check for the purpose of obtaining cash and thereafter dishonorably failing to maintain sufficient funds for payment of the check in full upon its presentation for payment, on 18 and 19 December 1988.  The imposed punishment was a suspended reduction to pay grade E-2, and restriction to the confines of Fort Shafter for 14 days, and extra duties for 14 days.  The applicant did not appeal the punishment.

6.  On 9 February 1989, the applicant's unit commander recommended he be barred from reenlistment for having issued eight dishonored checks at the Hawaii Area Exchange and at the US Army Commissary.  The applicant also had delinquent accounts at two commercial establishments.

7.  In the recommendation submitted by the applicant's commander for his bar to reenlistment, the commander noted the applicant had received non-judicial punishment for violation of Article 134, under the provision of Article 15 of the UCMJ, on 12 January 1988[sic].

8.  On 9 February 1989, the applicant's unit commander notified the applicant of his intent to initiate action to separate him from the Army for patterns of misconduct under the provisions of Army Regulation (AR) 635-200, Chapter 14.  The commander was prepared to recommend the applicant receive an other than honorable discharge.  This notice was sent to the battalion commander on about 10 March 1989 under cover of a memorandum explaining the reasons for recommending the applicant's discharge.

9.  The bar to reenlistment was approved by the appropriate commander, on 13 February 1989.

10.  The applicant underwent a mental status evaluation on 21 February 1989.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process clear and his thought content was normal.  The evaluating psychiatrist, an Army medical corps officer, found him to be mentally responsible, considered to have the mental capacity to understand and participate in separation proceedings, and to meet the retention standards of AR 40-501, Chapter 3.  In the Remarks section of the DA Form 3822, Report of Mental Status Evaluation, the examining physician stated, that there was no evidence of mental defect, emotional illness or psychiatric disorder of sufficient severity to warrant disposition through medical channels.  The individual was, he opined, mentally responsible, able to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.  The applicant was cleared for any administrative action deemed appropriate by command.

11.  On 21 February 1989, the applicant underwent a physical examination for the purpose of separation.  He was found qualified for separation.

12.  On 23 February 1989, the applicant was reported as being absent without leave (AWOL) from his unit.  On 5 March 1989, he surrendered to military police personnel at Fort Shafter and was returned to his unit.

13.  On 8 March 1989, the applicant received non-judicial punishment under the provisions of Article 15, of the UCMJ, for absenting himself from his unit on 23 February 1989.  The imposed punishment was a reduction to pay grade E-1; a forfeiture of $250.00 a month for 2 months; restriction for 45 days, and extra duties for 45 days.  The applicant did not appeal the punishment.

14.  The applicant was notified of approval of the bar to reenlistment on 28 March 1989, after his return from AWOL.

15.  On 13 April 1989, the applicant received non-judicial punishment under the provisions of Article 15, of the UCMJ, for wrongfully and unlawfully uttering a certain check, on 23 February 1989, knowingly when he did not have sufficient funds in or credit with the bank for payment of the check upon its presentment.  The imposed punishment was a forfeiture of $163.00 and restriction to the confines of Fort Shafter for 14 days.  The applicant did not appeal the punishment.

16.  The evidence of record shows that on 26 April 1989, the applicant’s unit commander notified him that he was being recommended for discharge under the provision of AR 635-200, Chapter 14.

17.  On 26 April 1989, the applicant acknowledged the letter of notification and waived consideration of his case by an administrative board contingent upon his receiving a characterization of service of no less favorable than (under honorable conditions – otherwise referred to as a "General" discharge).  

18.  The applicant requested that he be represented by a military attorney and a member of the Trial Defense Service was assigned to represent him.  In his statement of acknowledgement, he stated he was waiving his rights of his own free will and had not been subjected to any coercion whatsoever by any person.

19.  The applicant stated that he understood that he could expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions, was issued to him.  The applicant's attorney stated, "having been advised by me of the basis for his contemplated separation and its effects, the rights available to [the applicant], personally made the choices indicated in the foregoing statement."

20.  On an unspecified date, the applicant's unit commander recommended that he be discharged from the Army under the provisions of AR 635-200, Chapter 14.  In the recommendation, the unit commander stated his actions were based on the applicant's repeated demonstration of discreditable involvement with civil and military authorities.  The applicant displayed an apathetic attitude towards his duties and the military in general.

21.  On 1 May 1989, the recommendation for the applicant's separation was reviewed by the Chief, Administrative Law Division, Office of the Staff Judge Advocate, and was found to be legally sufficient for further processing under the provisions of AR 635-200.

22.  The applicant's chain of command recommended approval of his separation under the provisions of AR 635-200, Chapter 14, and further recommended he be furnished an other than honorable conditions discharge.

23.  On an unspecified date, the approving authority, a colonel, approved the applicant's discharge under the provisions of AR 635-200, Chapter 14, and directed that he be issued a General Discharge Certificate.

24.  The applicant was separated, under the provisions of AR 635-200, Chapter 14, with a general discharge, under honorable conditions, in the rank and pay grade private, E-1, on 22 June 1989.  He was credited with 2 years and 11 days of active military service, with the period from 23 February 1989 through 4 March 1989 identified as days of time lost.

25.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, shows he was awarded:  the Army Service Ribbon; the Marksman Marksmanship Qualification Badge, with Rifle Bar [M-16 Rifle]; and the Expert Marksmanship Qualification Badge, with Hand Grenade Bar.

26.  The applicant’s record documents the highest rank and pay grade he held on active duty was private first class, E-3.  There is no evidence in his service personnel record of acts of valor, achievement, or service warranting special recognition.

27.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.


28.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14, then in effect, established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

29.  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, 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.

DISCUSSION AND CONCLUSIONS:

1.  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 provided no evidence to satisfy this requirement.

2.  The evidence of record shows the applicant established a record of misconduct which resulted in his repeatedly being counseled, receiving non-judicial punishment, being barred from reenlistment, and being discharged, under the provisions of AR 635-200, Chapter 14, for this misconduct.

3.  The evidence shows the applicant received non-judicial punishment for going AWOL and remaining away from his unit for 10 days.  The applicant also received non-judicial punishment for wrongfully and unlawfully making checks with insufficient funds on deposit to cover payment of the checks upon their presentation for payment.

4.  The applicant stated in his application to the Board he had served his country in an honorable fashion; however, the evidence does not corroborate his statement.  When notified by his commander of his intention to separate him from the Army, and that if discharged he could receive an under other than honorable conditions discharge, the applicant acknowledged the commander's notification and waived his rights to a board of officer predicated on the condition that he be discharged with no less than a general discharge, under honorable conditions.
5.  The applicant's contention that he has been "a law abiding citizen for the past 15 years" has been noted; however, the Army does not now have, nor has it ever had, a policy of upgrading an individual's discharge solely based on the passage of time and an applicant's assertion they have been, "a law abiding citizen."  Based on the evidence, there is no basis for the upgrade of the applicant's discharge from general, under honorable, to a fully honorable discharge.

6.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged. 

7.  In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his general discharge, or changing the narrative reason for separation.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 22 June 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 21 June 1992; 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

___J____  _LDS____  __RSV__  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.




_____Linda D. Simmons_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011667
SUFFIX

RECON

DATE BOARDED
2007/03/22
TYPE OF DISCHARGE
GENERAL, UHC
DATE OF DISCHARGE
19890622
DISCHARGE AUTHORITY
AR635-200, CHAPTER 14 (14-12B)
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
A70
2.

3.

4.

5.

6.