RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060013739 


	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.


x
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 general, under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he went absent without leave (AWOL) due to constant threats, harassment, and emotional abuse he received by members of his unit and the lack of support he received from his command leaders.  He states that he is now older and married with children, has 18 months left to finish a degree and feels that having his GD upgraded to an HD would help his ability to attain a career that would sufficiently support his family.

3.  The applicant provides a Self Authored Statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 9 October 1991.  The application submitted in this case is dated 
16 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 he enlisted in the Regular Army and entered active duty on 20 February 1990.  He was trained in, awarded, and served in military occupational specialty (MOS) 16S (Manpads Crewmember), and the highest rank he attained while serving on active duty was private first class (PFC).  His record documents no acts of valor, significant achievement, or service warranting special recognition.  The record reveals a disciplinary history that includes his being formally counseled on several occasions between 
24 May 1991 and 24 August 1991, for a myriad of disciplinary infractions and poor duty performance.  It further reveals his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions.   

4.  On 24 June 1991, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed; willfully disobey a lawful order from his superior a noncommissioned officer (NCO); and for with intent to deceive make a false statement.  His punishment for these offenses was a forfeiture of $191.00, reduction in grade to private/E-2 (PV2), and 14 days extra duty and restriction.

5.  On 16 August 1991, the applicant accepted NJP for on or about 17 July 1991 being absent without leave (AWOL) until on or about 10 August 1991.  His punishment for these offenses was a forfeiture of $376.00 per month for two months, reduction in grade to private/E-1 (PV1), and 45 days extra duty and restriction.

6.  On 5 September 1991, the unit commander notified the applicant that he intended to initiate separation action on him under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  The unit commander cited his reasoning for taking the action was the applicant's receipt of two Article 15s for AWOL, failure to go to appointed place of duty, and failure to report for duty on several occasions. 

7.  On 6 September 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.
  
8.  On 1 October 1991, the separation authority approved the separation action and directed the applicant receive a GD.  On 9 October 1991, the applicant was separated accordingly.  The separation document (DD Form 214) he was issued at the time shows he completed a total of 1 year, 6 months, and 14 days of active military service and that he had accrued 35 days of time lost due to AWOL.  It also shows he held the rank of private/E-1 at the time of his separation.  

9.  There is no indication in the record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB’s 15-year statute of limitations.  


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance, and provides, in pertinent part, that commanders will separate a member under this chapter when, in the commander's judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that having his GD upgraded to an HD would help his ability to attain a career that would sufficiently support his family was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal a disciplinary history that clearly diminished the quality of his overall record of service below that meriting a fully honorable discharge.  

3.  The evidence of record further confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout his separation process.  

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.  

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 October 1991.  Therefore, the time for him to file a request for correction of any error or injustice expired on 8 October 1994.  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

_x __  ___x _  _x__  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.




_____x____
          CHAIRPERSON




INDEX

CASE ID
AR20060013739
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/20
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
1991/10/09
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Chapter 13 unsatisfactory performance
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.