RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 April 2007
	DOCKET NUMBER:  AR20060013920 


	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
	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 under honorable conditions discharge be upgraded to an honorable discharge.  

2.  The applicant states that he has been punished long enough for something he did wrong that long ago.  He states that everyone should be forgiven for making a mistake in time. 

3.  The applicant provides a copy of 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 14 February 1985.  The application submitted in this case is dated 19 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 enlisted in the Regular Army on 14 June 1978.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 11B (Infantryman) and was later reclassified to MOS 52C (Utilities Equipment Repairer).  He was promoted to specialist four on 15 January 1980.

4.  The applicant was discharged on 13 May 1981 for the purpose of immediate reenlistment.  He reenlisted on 14 May 1981 and was discharged on 24 January 1983 for immediate reenlistment.  

5.  The applicant reenlisted on 25 January 1983 for a period of 4 years.  

6.  On 10 September 1983, the applicant was investigated by the Criminal Investigation Command for bigamy, altering public documents, and making false statements.  

7.  On 5 April 1984, the applicant was investigate by the Criminal Investigation Command for assault and communicating a threat to his wife.

8.  On 3 August 1984, the applicant received a Letter of Reprimand for actions involving his marriage to his wife, C__________, on 10 September 1983.

9.  The applicant was apprehended by military police on 25 November 1984 for assault and larceny of private property.  

10.  On 23 January 1985, the unit commander notified the applicant of separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  He was advised of his rights.  The applicant acknowledged notification of separation action.  

11.  The applicant consulted legal counsel, waived consideration of his case by an administrative separation board, and submitted statements in his own behalf.  His statements are not available.  

12.  On 28 January 1985, the separation authority waived rehabilitative transfer requirements and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense with issuance of a General Discharge Certificate.

13.  On 14 February 1985, the applicant was discharged from active duty on under the provisions of Army Regulation 635-200, paragraph 14-12c.  He completed 2 years and 20 days of active military service on his current enlistment and a total of 6 years, 8 months, and 1 day of active military service.

14.  On 4 August 1999, the Army Discharge Review Board (ADRB) denied the applicant's request for a change in the character and reason of his discharge.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

16.  Army Regulation 635-200, paragraph 3-7a states that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the Soldier'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.  Where there have been infractions of discipline, the extent thereof should be considered, as well as the seriousness of the offense(s).

17.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The applicant’s service records show he was investigated by the Criminal Investigation Command for bigamy, altering public documents, making false statements, assault and communicating a threat to his wife.  He also was apprehended by military police for assault larceny of private property.  

3.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined that the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge, but it was sufficient to warrant a general discharge.

4.  The applicant’s contentions have been noted.  However, he has failed to show through the evidence submitted or the evidence of record that the character of service issued to him was in error or unjust.  Therefore, there is no basis for granting his request.
5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 4 August 1999.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 3 August 2002.  The applicant did not file within the ABCMR's 3-year statute of limitations and has not provided 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
AR20060013920
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070405
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19850214
DISCHARGE AUTHORITY
AR635-200, chapter 14
DISCHARGE REASON
Misconduct - commission of a serious offense
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.