RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2006
	DOCKET NUMBER:  AR20060016515 


	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:


Mr. Kenneth L. Wright

Chairperson

Mr. Patrick H. McGann Jr

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 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 of his discharge he was told that after 1 year he could upgrade his discharge.  After his first term of service he reenlisted, but he ran into family problems and had no choice but to leave.  He was absent without leave (AWOL) and when he later came back to post he was under the impression that he was getting an honorable discharge.

3.  The applicant states that at the time of his discharge he was told by a personnel sergeant that it would not affect him in the least.  However, he found out in prison from a veterans club that his discharge would keep him from certain Veterans Affairs benefits.  He further states under the guidelines of the veterans club that he could not join it [due to his discharge].

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with the ending period 26 February 1988; Headquarters, 4th Infantry Division (Mechanized) Orders 027-605, dated 8 February 1988; and a DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 17 February 1987.
 
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 26 February 1988.  The application submitted in this case is dated 
15 November 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 August 1984 and successfully completed basic training and advanced individual training.  He was 
awarded military occupational specialty 76C (Equipment Records and Parts Specialist).  The applicant was honorably discharged on 16 February 1987 and immediately reenlisted on 17 February 1987.
4.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 
21 October 1987, shows the applicant was barred from reenlistment for receiving three Article 15s, and having numerous disciplinary counselings.  He did not desire to submit a statement on his own behalf.

5.  A DD Form 458, dated 2 February 1988, shows charges were preferred against the applicant for being AWOL for the period 16 November 1987 through 28 January 1988.

6.  On 2 February 1988, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.

7.  The applicant submitted a statement on his own behalf that stated "I feel that I won't be able to take any more of this mess without me going to jail." 

8.  On 4 February 1988, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an under other than honorable conditions discharge and be reduced to the lowest enlisted grade under the provisions of chapter 10 of Army Regulation 635-200.  On 26 February 1988, the applicant was discharged with an under other than honorable conditions discharge.  He had completed a total of 3 years, 
3 months, and 29 days of creditable active service with 73 days lost time due to AWOL.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 
a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate

10.  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 contends that he went AWOL because he had family problems. However, there is no evidence and the applicant has not provided evidence that shows he sought assistance from his chain of command, chaplain, or community support service for assistance with his personal problems.  Therefore, there is no basis for this argument.

2.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

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

4.  The applicant's records show that he was barred from reenlistment and had one instance of AWOL.  He had completed about 1 year of creditable active service of his last enlistment with a total of 73 days lost time due to AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 February 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
25 February 1991.  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

___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
AR20060016515
SUFFIX

RECON

DATE BOARDED
10 MAY 2007
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SCHWARTZ
ISSUES         1.
144.0135.0000
2.

3.

4.

5.

6.