RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2007
	DOCKET NUMBER:  AR20060014255 


	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 honorable.  

2.  The applicant states, in effect, that he wants to be eligible for the Department of Veteran Affairs benefits for rehabilitation and education.

3.  The applicant provides no additional documents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 13 December 1985.  The application submitted in this case is dated 27 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 15 February 1984 for a period of four years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 95C (Correctional Specialist).  

4.  The applicant’s service records contain a Military Police Report (DA Form 3975), dated 1 February 1985, which shows he was investigated for driving with a suspended driver’s license.

5.  He was advanced to private first class on 15 February 1985.

6.  On 15 November 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on two separate occasions.  His punishment consisted of 14 days extra duty, a forfeiture of $175.00 pay (suspended until 14 January 1986), and a reduction to private E-2.  He did not appeal the punishment.  On 3 December 1985, the suspension of the punishment of a forfeiture of $175.00 pay was vacated.  The vacation was based on the applicant’s failure to go to his appointed place of duty on 1 December 1985.

7.  On 5 December 1985, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment consisted of a reduction to private E-1, 14 days of extra duty, and 14 days of restriction.  He did not appeal the punishment.

8.  By a letter, dated 6 December 1985, the applicant was informed of the consequences of failing the semi-annual Army Physical Readiness Test (APRT).

9.  On an unknown date, the applicant was barred from reenlistment for his two company grade Article 15s, counseling sessions on 27 February 1985, 27 March 1985, 15 July 1985, and 3 October 1985, and for debts.  The Bar to Reenlistment Certificate indicated the applicant was referred to a budget counselor on 13 July 1985.  The company commander stated the applicant had failed to follow the prescribed budget established by the budget counselor and that he was an APRT failure. 

10.  On various occasions between February 1985 and December 1985, the applicant received numerous adverse counseling statements for the following circumstances:  failure to pay debts; failure of the APRT and semi-annual APRT; budget counseling; failure to report to duty; missing mandatory training; writing a bad check; failure to pay back rent; Article 15 proceedings; continued display of neglectful attitude toward personal finance obligations; and being late for duty.  

11.  On 6 December 1985, the applicant's unit commander notified him of his proposed recommendation to discharge him under the provisions of Army Regulation 635-200, chapter 13 for unsatisfactory performance.  He was advised of his rights.  The unit commander stated the reasons for his proposed action as the applicant’s unsatisfactory performance, two Article 15s, numerous counseling statements, and his failure to follow the financial budget established by the budget counselor.

12.  The applicant acknowledged notification of the separation action, consulted with legal counsel, and submitted statements in his own behalf.  He indicated he was aware of and understood the separation action taken against him under the provisions of Army Regulation 635-200, chapter 13.  Although he felt his command was justified in initiating this action, he felt he should receive an honorable discharge because his duty performance, as a whole, had been very good.  Whenever he was told to do a job, he did it and he never had to be checked-up on by his superiors.  He also stated that he did not feel his conduct had brought serious discredit upon the Army and he had never been in trouble with civilian authorities or received a DUI [driving under the influence].  During his time in the Army, he successfully completed basic training, advanced individual training, the Junior Leadership course, and the Defensive Driving Course.  He also received letters of appreciation which testified to the quality service he had given the Army.  He requested that his entire record be considered rather than just the circumstances that led to his elimination action.

13.  On 12 December 1985, the separation authority approved the recommendation for separation, waived rehabilitation requirements, and directed issuance of a General Discharge Certificate.  

14.  The applicant was discharged on 13 December 1985 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance.  He had completed 1 year, 9 months, and 29 days of active military service.

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

16.  Army Regulation 635-200, in pertinent part, 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).  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 13 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 record shows he received two Article 15s, both for failing to go to his appointed place of duty, a Military Police Report for driving with a suspended driver’s license, a bar to reenlistment, and numerous adverse counseling statements.  Although the applicant feels that he should have received an honorable discharge, his service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable discharge.

3.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as general under honorable conditions.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 13 December 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 12 December 1988.  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

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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060014255
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070501
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110.0000
2.

3.

4.

5.

6.