RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 May 2007
	DOCKET NUMBER:  AR20060016661 


	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

Ms. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. Ronald Weaver

Chairperson

Mr. Jeffrey Redmann

Member

Mr. David Tucker

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 general discharge be upgraded to honorable. 

2.  The applicant states that medical reasons led to his poor decision making.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 14 December 1988.  The application submitted in this case is undated; however, the application was received in this office on 29 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 on 8 July 1986 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 67T (tactical transport helicopter repairer).
  
4.  On 2 June 1987, nonjudicial punishment was imposed against the applicant for larceny.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and extra duty. 

5.  On 14 October 1988, nonjudicial punishment was imposed against the applicant for larceny.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

6.  On 2 December 1988, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant’s two nonjudicial punishments for larceny, reckless driving, and fleeing to elude a police officer.



7.  On 5 December 1988, the applicant consulted with counsel, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement on his own behalf.

8.  On 8 December 1988, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge.

9.  Accordingly, the applicant was discharged with a general discharge on 
14 December 1988 under the provisions of Army Regulation 635-200, paragraph 
14-12c, for misconduct (commission of a serious offense).  He had served a total of 2 years, 5 months, and 7 days of creditable active service.

10.  There is no evidence of record which shows the applicant was diagnosed with any medical condition prior to his discharge. 

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that medical reasons led to his poor decision making, there is no evidence of record, and the applicant has provided no evidence, which shows that he was diagnosed with any medical condition prior to his discharge.



2.  Since the applicant’s record of service included two nonjudicial punishments, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

3.  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.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
4.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

5.  Records show the applicant should have discovered the alleged injustice now under consideration on 14 December 1988; therefore, the time for the applicant to file a request for correction of any injustice expired on 13 December 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

RW____  __JR____  __DT____  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.




__Ronald Weaver_______
          CHAIRPERSON




INDEX

CASE ID
AR20060016661
SUFFIX

RECON

DATE BOARDED
20070524
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19881214
DISCHARGE AUTHORITY
AR 635-200 Chapter 14
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.