RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060014940 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. James E. Vick

Chairperson

Mr. Patrick H. McGann, Jr. 

Member

Mr. Gerald J. Purcell

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 that his under honorable conditions discharge be upgraded to honorable. 
 
2.  The applicant states he was told at out-processing that his discharge would be automatically upgraded after 6 months.  It is now years later and his discharge has not been upgraded.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 24 December 1991, the date of his discharge.  The application submitted in this case is dated 3 October 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.  He enlisted in the Army on 10 May 1988 for 4 years.  He successfully completed his initial training and was awarded military occupational specialty 31C1O (Single Channel Radio Operator).

4.  From 7 July 1989 to 16 May 1991, the applicant failed seven Army physical fitness tests and was counseled on three occasions about his need to improve his physical fitness.

5.  On 8 January 1991, the applicant was counseled about a bar to reenlistment. There is no evidence showing that a bar to reenlistment was initiated by the commander.



6.  On 30 May 1991, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for a dishonored check.  The punishment included a reduction to private, pay grade E2, and 
14 days restriction and extra duty.

7.  On 27 July 1991, the applicant received NJP for failure to go to his appointed place of duty.  The punishment included reduction to private, pay grade E1 (suspended); a forfeiture of $175.00 pay; and 14 days extra duty and restriction.

8.  On 12 September 1991, the applicant underwent a mental status evaluation.  The applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

9.  On 26 November 1991, the applicant’s commander recommended his separation him from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  The commander indicated that rehabilitation would not be in the interest of the United States Army as it would not produce a quality Soldier.

10.  On 27 November 1991, the applicant consulted with counsel, and elected to make a statement in his own behalf.  He acknowledged that he had been recommended for a general discharge and that such a discharge would be prejudicial in the civilian world.  He further stated that he did not feel this discharge was justified in that his only crime was being a poor runner.  He also protested being involuntarily discharged just 5 months short of completing his enlistment.

11.  On 9 December 1991, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate. 

12.  Accordingly, he was discharged under honorable conditions on 
24 December 1991.   He had completed 3 years, 7 months, and 15 days of creditable active service.

13.  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.

14.  On 26 May 1995, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

15.  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 Army Discharge Review Board (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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.

4.  There is no policy, regulation, directive or law that provides for the automatic upgrade of any discharge from military service.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 26 May 1995.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 25 May 1998.  However, 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

__JEV__   __PHM __  __GJP __  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.




__      James E . Vick_______
          CHAIRPERSON




INDEX

CASE ID
AR20060014940
SUFFIX

RECON
 
DATE BOARDED
20070424 
TYPE OF DISCHARGE
GD 
DATE OF DISCHARGE
19911224 
DISCHARGE AUTHORITY
AR 635-200 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4900
2.

3.

4.

5.

6.