RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060013213 


	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. Victoria A. Donaldson

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, in effect, that his uncharacterized entry level discharge be corrected to show honorable service.

2.  The applicant states that he was discharged after serving over 180 days because he concealed the fact that he had a previous civilian arrest record.

3.  The applicant did not provide any additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 20 August 1986, the date his military service was terminated.  The application submitted in this case is dated 6 September 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 record shows that he enlisted in the Regular Army and entered active duty on 14 February 1986.  He completed advanced individual training.  There is no evidence that he was awarded a military occupational specialty and the highest rank he attained while serving on active duty was private/pay grade E-1.  

5.  Records show that the applicant placed his initials in the "NO" block assigned to question 31 (Have you ever been arrested, apprehended, charged, cited or held by Federal, State, military or other law enforcement or juvenile authorities, regardless of whether the citation was dropped or dismissed or you were found not guilty?"

6.  A Defense Investigative Services Report, dated 5 June 1986, shows that the applicant was arrested for Burglary and Petty Theft on 17 October 1983.

7.  On 7 August 1986, the applicant’s commander notified him that he was being recommended for separation from the Army for concealment of his arrest record and was counseled by a Judge Advocate's General Corps captain serving in the position of defense counsel.  The applicant was advised that the he was being recommended for separation under the provisions of chapter 5 of Army Regulation 635-200 (Personnel Separations) for concealment of his arrest record.

8.  On 18 August 1986, the separation authority directed the applicant’s separation under the provisions of paragraph 5-14 of Army Regulation 635-200, and directed that he receive an uncharacterized discharge.  On 20 August 1986, the applicant was discharged accordingly.  The Certification of Military Service issued to him at the time, shows the applicant was a member of the Army of United States during the period 14 February 1986 through 20 August 1986.

9.  There are no other separation documents available for review with this case.

10.  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.

11.  Army Regulation 635-200 (Personnel Separations), sets forth the basic authority for the separation of enlisted personnel.  Chapter 5, then in effect, sets forth the conditions under which enlisted personnel could be discharged, released from active duty or active duty for training, or released from military control, for the convenience of the Government and provides the policies and procedures for separating enlisted personnel who intentionally concealed or misrepresented any information regarding his record of arrest or convictions or juvenile court adjudications

12.  Chapter 5 of Army Regulation 635-200 states that unless the reason for separation requires a specific characterization, a soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in entry-level status. 

13.  Army Regulation 635-200, paragraph 3-7, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  The applicant was separated from the military for concealing his arrest record. The applicant acknowledged that he understood that he could be separated from military service for intentionally concealing or misrepresenting his arrest record.  

3.  The record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  

4.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 August 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 August 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

__LE____  _MJF___  __LMB___  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
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.