RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 May 2007
	DOCKET NUMBER:  AR20060015705 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Jerome L. Pionk

Member

Mr. Eddie Smoot

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 other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that at the time he was young and did not make sound decisions.  He further states that now he is older and would like to go on with his life.  The applicant continues that the offense occurred off base where he worked as a bouncer.  He states that the other person struck him and cut open his eye and he saw it as a matter of self defense.  The applicant states that it has been 20 years, and he would like to have his discharge upgraded.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 October 1986.  The application submitted in this case is dated 30 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.  The applicant enlisted in the Regular Army on 5 October 1976 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 64C (Motor Transport Operator).  He was honorably discharged on 5 April 1979 and immediately reenlisted on 
6 April 1979.  The applicant was honorably discharged on 5 January 1982 and immediately reenlisted on 6 January 1982.

4.  On 3 October 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order by backing a vehicle without a ground guide.

5.  On 4 February 1984, the applicant accepted NJP under Article 15, UCMJ for committing an assault on a German National Citizen.
6.  On 25 February 1984, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

7.  On 25 April 1986, the applicant accepted NJP under Article 15, UCMJ for wrongfully using marijuana, committing an assault on a fellow Soldier, and wrongfully communicating a threat to a fellow Soldier.

8.  The applicant's discharge proceedings are not available.

9.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 10 October 1986 under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) by reason of "MISCONDUCT-COMMISSION OF SERIOUS OFFENSE" with a characterization of service of under other than honorable conditions.  The applicant completed a total of 10 years and 6 days of creditable active service with no lost time.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not 
sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he was received four Article 15s and was separated for misconduct-commission of a serious offense.  Based on these facts, the applicant’s service during his last enlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of an honorable or general under honorable conditions discharge.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 10 October 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
9 October 1989.  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

__LDS __  __JLP  __  ___ES __  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.




____Linda D. Simmons__
          CHAIRPERSON

INDEX

CASE ID
AR20060015705
SUFFIX

RECON

DATE BOARDED
8 MAY 2006
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.0133.0000
2.

3.

4.

5.

6.