RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 May 2007
      DOCKET NUMBER:  AR20060013875


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Patrick H. McGann             |     |Member               |
|     |Ms. Karmin S. Jenkins             |     |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 a fully honorable discharge (HD).


2.  The applicant states, in effect, that personal problems he experienced
while serving at Fort Bragg, North Carolina, interfered with his
professional career as a Soldier.  He claims he has carried the burden of
disappointment caused by the events in his life that ended his military
career and he views the circumstances  under which he left military service
as a point of failure, which he views as unacceptable.

3.  The applicant further states that he is now happily married and the
father of four children, and that over the last 11 years, he has dedicated
himself to a promising career as a law enforcement officer.  He claims he
has excelled in positions raging from patrol officer through his current
position as Chief of Police.  He states that for the past five and one half
years, he has also worked as a youth counselor with the North Carolina
Department of Juvenile Justice and Delinquency Prevention.  He further
indicates that even while dedicating himself to two careers and his family,
he has still found the time to go back to college to continue his
education, and in 2006, he received his Associate's Degree in Criminal
Justice.  He states that as a student, he served as the President of the
Student Government Association and was also elected a trustee on the school
board.  He claims to have been named to the Dean's Honor List as well as
the National Honor Society.  He is also a member of Phi Beta Kappa and is
currently enrolled in a four year university and will soon complete his
Bachelor's Degree.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Separation Document (DD Form 214);
State of North Carolina Criminal Justice Education and Training Standards
Commission General Certification Certificate; Associate Degree Certificate;
National Technical Honor Society Certificate; and Phi Theta Kappa
Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 13 September 1991, the date of his separation.  The
application submitted in this case is dated 20 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 2 May 1988.  He was trained in, awarded, and served
in military occupational specialty (MOS) 63B (Light Vehicle Driver), and
the specialist (SPC) is the highest rank he attained while serving on
active duty.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
during his active duty tenure, he completed an overseas tour in Germany and
served in Southwest Asia (SWA) from 16 September 1990 through 23 March
1991.

5.   The applicant's record also confirms that during his active duty
tenure, he earned the following awards:  National Defense Service Medal
(NDSM); Army Achievement Medal (AAM); Army Service Ribbon (ASR); Overseas
Service Ribbon (OSR); SWA Service Medal with 2 bronze service stars;
Marksman Marksmanship Qualification Badge with Rifle Bar; and Expert
Marksmanship Qualification Badge with Hand Grenade Bar.

6.  The applicant's disciplinary history consists of his acceptance of non-
judicial punishment under the provisions of Article 15 of the Uniform Code
of Military Justice (UCMJ) on 14 May 1991, for failing to go to his
appointed place of duty at the time prescribed on four separate occasions
between 2 and 16 April 1991.  His punishment for these offenses was a
reduction to private first class (PFC) and forfeiture of $100.00
(suspended) and 14 days of extra duty.

7.  On 22 July 1991. the unit commander notified the applicant he was
initiating action to separate the applicant for unsatisfactory performance.
 The unit commander stated his reason for taking the action was his belief
that the applicant would not develop sufficiently to participate
satisfactorily in further training and/or become a satisfactory Soldier.

8.  On 26 July 1991, the applicant consulted with legal counsel and was
advised of the basis for the contemplated separation action and its
effects.  Subsequent to this counseling, he elected to make a statement in
his own behalf.  There is no indication that he submitted this statement
and it is not on file in his record.

9.  On 23 August 1991, the separation authority approved the applicant's
separation and directed he receive a GD, and that he not be assigned to the
Individual Ready Reserve.  On 13 September 1991, the applicant was
discharged accordingly.

10.  On 21 November 1995, the Army Discharge Review Board (ADRB), after
careful consideration, determined the applicant's discharge was proper and
equitable and it voted to deny the applicant's petition to upgrade his
discharge.

11.  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.

12.  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 Army Board for Correction of
Military Records (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 contention that his discharge should be upgraded
because he was experiencing personal problems at the time and based on his
post service conduct and accomplishments was carefully considered.
However, there is insufficient evidence to support this claim.

2.  The evidence of record 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 the separation process.  Further, the applicant's
misconduct clearly diminished his
overall record of service below that meriting a fully honorable discharge
at the time of his separation.

3.  There is no indication that the applicant suffered from personal
problems that were serious enough to impair his ability to serve at the
time of his discharge processing.  Further, although his post service
accomplishments are noteworthy, this factor alone is not sufficiently
mitigating to 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 this requirement.

5.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 21 November 1995.
As a result, the time for him to file a request for correction of any error
or injustice to this Board expired on 20 November 1998.  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_  __PHM __  __KSJ __  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                 |AR20060013875                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/05/10                              |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |1991/09/13                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsat Perf                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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