RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013022 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Mr. David K. Haasenritter

Member

Ms. LaVerne M. Douglas

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 discharge be upgraded to a General Discharge under honorable conditions.

2.  The applicant states, in effect, that he was injured in basic training, and he was unable to perform his duties.  He did whatever he had to do, but there was no misconduct on his part.  He attended all of the rehabilitation sessions and all he ever wanted was to continue his military service.

3.  The applicant does not provide any additional documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 May 1986.  The application submitted in this case is dated 13 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 records show he entered active duty on 14 November 1985.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 11C1O (Indirect Fire Infantryman).  His records show that his highest pay grade held was private/pay grade E-2.

4.  He was assigned to Headquarters and Headquarters Company (HHC)  
3rd Battalion, 14th Infantry, 10th Mountain Division (Light), Fort Benning, Georgia.

5.  On 4 March 1986, the applicant received his initial counseling from his squad leader.  During counseling, the squad leader counseled the applicant to make sure the applicant knew what was expected of him while he was assigned to the unit.  Subsequent counseling was conducted on 31 March 1986 and 28 April 1986 concerning his performance and behavior.  In those counseling the applicant was told that although he had a cast on his leg, he needed to improve his attitude.  He was also counseled when he was caught “playing around” when he was supposed to be training; he was counseled on his uniform and haircut standards; he was counseled on improving the cleanliness of his area of operations; and he was counseled on his development of a “serious attitude problem.”

6.  On 12 May 1986, the applicant's commander recommended a proposed separation under the provision of Army Regulation 635-200, paragraph 11-3 for failure to adapt to the military environment in that the applicant had demonstrated character and behavior characteristics not compatible with satisfactory continued service.

7.  The applicant acknowledged the notification of his proposed uncharacterized entry level separation from the United States Army.  He understood that his veterans and other benefits normally associated with completion of active service would be affected.  He further understood that he would not be permitted to apply for reenlistment in the United States Army for two years following his separation date.

8.  The separation authority approved the proposed separation and directed that the applicant be discharged from the United States Army with an entry level separation under the provision of Army Regulation 635-200, paragraph 11-3.  On 30 May 1986, the applicant was discharged for entry level status performance and conduct.   His character of service was uncharacterized.  He had completed a total of 6 months and 17 days of active service.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations), chapter 11, establishes policy and prescribes procedures for separating members because of unsatisfactory performance or conduct (or both) while in an entry level status.  It states, in pertinent part, that separation under this chapter applies to Soldiers who are in an entry level status and, before the date of the initiation of separation action, have completed no more than 180 days of continuous active duty and have demonstrated that they cannot or will not adapt socially or emotionally to military life.  Entry level status is defined as the first 180 days of continuous active duty.  It further states that the character of service for members separated under the provisions of this chapter will be uncharacterized.

11.  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.

12.  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 requests that his discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states that his injury was the reason he was unable to perform his duties.  While the applicant’s counseling statements confirm that his leg was in a cast, he was counseled for his attitude, his appearance, the appearance of his area of operations, and his work ethic.

3.  The Board must review a case with a presumption of regularity, that what the Army did was correct.  It is up to the applicant to prove otherwise.  The applicant has not submitted any documentation to overcome the presumption of regularity.

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.  Therefore, he is not entitled to correction of his records to show a general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 May 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on  
29 May 1989.  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

____lmd_  ____dkh_  ____kan_  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.




________Kathleen A. Newman_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013022
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.