RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 March 2007
      DOCKET NUMBER:  AR20060012473


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 general discharge be upgraded to fully
honorable.

2.  The applicant states he was young and not in too much trouble.  He was
very good at his job of armor crewman, but in garrison he was a mess.  His
first sergeant told him if they went to war he would want the applicant on
his tank.  He now needs access to medical and education benefits.

3.  The applicant provides the front page of a DD Form 293 (Application for
the Review of Discharge or Dismissal from the Armed Forces of the United
States) and his DD Form 214 (Certificate of Release or Discharge from
Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 June 1990.  The application submitted in this case is dated
23 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 Regular Army on 13 June 1989.  He
completed basic training and advanced individual training and was awarded
military occupational specialty 19K (M1 Armor Crewman).

4.  A DA Form 4126-R (Bar to Reenlistment Certificate) shows that between
    3 December 1989 and 31 January 1990 the applicant was counseled five
times for -- dishonored checks (once), failure to prepare (three times),
and Army Physical Fitness Test failure (once), and he received two letters
of indebtedness.

5.  On 22 February 1990, the applicant’s bar to reenlistment was approved.

6.  On 10 April 1990, the applicant accepted non-judicial punishment under
Article 15, Uniform Code of Military Justice for uttering four checks in
payment of a debt and then failing to place sufficient funds in the bank
for payment of such checks.

7.  On 11 April 1990, the applicant completed a mental status evaluation
and was found to be mentally responsible and to have the mental capacity to
understand and participate in proceedings.

8.  On 25 April 1990, the applicant completed a separation physical and was
found qualified for separation.

9.  On 18 May 1990, the applicant’s commander initiated separation action
on the applicant under the provisions of Army Regulation 635-200, chapter
14.  He informed the applicant the least favorable characterization of
service he could receive would be a discharge under other than honorable
conditions.  He stated he was recommending the separation authority give
him an honorable characterization of service.

10.  On 18 May 1990, the applicant acknowledged receipt of the separation
Letter of Notification.

11.  On 18 May 1990, the applicant’s commander formally recommended he be
separated under the provisions of Army Regulation 635-200, chapter 14 for
minor disciplinary infractions and acts or patterns of misconduct.  The
commander recommended the applicant be given an honorable discharge.

12.  On 5 June 1990, the appropriate authority approved the recommendation
for separation and directed the applicant receive a general discharge.

13.  On 27 June 1990, the applicant was discharged with a general under
honorable conditions characterization of service under the provisions of
Army Regulation 635-200, chapter 14 for misconduct -- pattern of
misconduct.  He had completed 1 year and 15 days of creditable active
service and had no lost time.

14.  On 8 December 1995, the Army Discharge Review Board (ADRB) denied the
applicant's petition to upgrade his discharge.

15.  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.
16.  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.

17.  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.)

18.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been considered.  However, being a
Soldier is a 24-hour a day profession.  As he acknowledges, his service
while in garrison was not good.

2.  The applicant’s administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.  Considering the overall
quality of his service, it appears the separation authority properly
characterized his service as general under honorable conditions.

3.  Veterans benefits fall under the purview of the Department of Veterans
Affairs.  While the Department of the Army has no jurisdiction over those
benefits, it appears the applicant’s general under honorable conditions
characterization of service should qualify him for medical benefits.  He
should contact his local Department of Veterans Affairs office for more
information and a determination of benefits eligibility.
4.   Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 8 December 1995.  As a
result, the time for the applicant to file a request for correction of any
error or injustice to this Board expired on 7 December 1998.  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

__le____  __lmb___  __mfj___  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.




                                  ____Lester Echols_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012473                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070329                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19900627                                |
|DISCHARGE AUTHORITY     |AR 635-200, ch 14                       |
|DISCHARGE REASON        |A51.00                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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