RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2007
	DOCKET NUMBER:  AR20060011775 


	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 requests, in effect, that his rank and type of discharge received be corrected.

2.  The applicant states, in effect, that the discharge document is an old one and that an updated one should be on file at Fort Dix, New Jersey.

3.  The applicant provides a copy of his separation document (DD Form 214) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 17 March 1988.  The application submitted in this case is dated 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.  The applicant's military records show he enlisted in the Regular Army and entered active duty on 27 August 1986, in the rank of private first class (PFC).
He completed basic combat training at Fort Dix, New Jersey and advanced individual training (AIT) at Aberdeen Proving Grounds, Maryland.  Upon his successful completion of AIT, he was awarded military occupational specialty (MOS) 63G (Fuel and Electric System Repairer).

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that PFC was the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private/E-2 (PV2) on 11 September 1987; and to the rank of private/E-1 (PV1) on 8 January 1988.


5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offense(s) indicated:  11 September 1987, for unlawfully striking another Soldier in the face with his open hand; and 9 October 1987, for two specifications of disobeying the lawful order of a noncommissioned officer (NCO).  

6.  The punishment imposed by the NJP action of 11 September 1987 included the applicant’s reduction to PV2; and the punishment imposed by the 8 January 1988 NJP action included his reduction to PV1.  

7.  The applicant’s record also contains a Military Police Report (DA Form 3975) that indicates that he was picked up by German police and transported to the Military Police Station on 25 December 1987, for being drunk and disorderly, and assaulting a German National.

8.  On 6 January 1988, the applicant underwent a mental status evaluation.  The examining physician determined the applicant had no significant mental illness, that he was able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.

9.  On 20 January 1988, the applicant was formally counseled by his unit commander regarding his past history of alcohol abuse, drunk and disorderly conduct, failure to follow orders, and his inability to be productive for future service.  He was told at that time of his commander’s intent to start proceedings to process him for separation from the service, under the provisions of Army Regulation 635-200, Chapter 14.

10.  On 3 February 1988, the unit commander requested a waiver of rehabilitative transfer under the provisions of paragraph 1-18, AR 635-200, indicating that the applicant’s continued service would create serious discipline problems in the unit.  On 5 February 1988, the request for waiver was approved.


11.  On 19 February 1988, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of paragraph 14-12b, AR 635-200, by reason of a pattern of misconduct.  He cited the applicant’s disciplinary history as the basis for the action.  

12.  On 19 February 1988, having been afforded the opportunity to be advised by counsel concerning the basis for the contemplated separate action and its effects, the rights available to him, and the effect of a waiver of rights; he completed his election of rights.  He waived his right to have his case considered by and to personally appear before a board of officers.  He also waived his right to be represented by counsel and elected not to submit a statement on his own behalf.

13.  On 19 February 1988, the separation authority approved the applicant's separation and directed he receive a general, under honorable conditions discharge (GD).  On 17 March 1988, the applicant was discharged accordingly.  The DD Form 214 issued to the applicant upon his separation confirms he completed a total of 1 year, 6 months, and 21 days of creditable active military service and that he held the rank of PV1 on the date of his discharge.  It also confirms he was separated under the provisions of paragraph 14-12b, Army Regulation 635-200, by reason of Misconduct (Patterns of Misconduct), and that he was issued a GD.  The applicant authenticated this document with his signature in item 21 (Signature of Member Being Separated).  

14.  There are no documents in the applicant’s record to show that he was issued a subsequent discharge document after the one issued to him on 17 March 1988.

15.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

16.  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.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An under other than honorable conditions discharge is normally considered appropriate for members separating under these provisions. However, the separation authority may issue a general or honorable discharge if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to reflect the rank and type of discharge he received when his 17 March 1988 was updated and a new DD Form 214 was issued has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record shows the applicant was issued only one DD Form 214 on the date of his separation, 17 March 1988.  The record does not include a new or subsequently issued DD Form 214.  

3.  The evidence of record does confirm the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It further confirms that the applicant's extensive disciplinary history clearly diminished the overall qualify of his service below that meriting a fully honorable discharge, and his GD accurately reflects his overall record of service.  His overall record of service did not support an honorable discharge at the time of his separation, nor does it support an upgrade of his discharge at this time.  

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 the aforementioned requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 March 1988, the date of his separation from active duty.  Thus, the time for him to file a request for correction of any error or injustice expired on 16 March 1991.  He failed to 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

___KLW _  __CAD__  __EJF___  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.




_____Kenneth L. Wright_____
          CHAIRPERSON


INDEX

CASE ID
AR20060011775
SUFFIX

RECON
NO
DATE BOARDED
2007/03/27
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1978/03/17
DISCHARGE AUTHORITY
AR 635-200  
DISCHARGE REASON
Patterns of Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000
2.

3.

4.

5.

6.