RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 January 2007
      DOCKET NUMBER:  AR20060017118


      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. Carl W. S. Chun               |     |Director             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffery C. Redmann            |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. David W. 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, in effect, that his discharge, characterized as
under honorable conditions, be upgraded to honorable.

2.  The applicant states, in effect, that he felt he had proven this
situation was a one time problem.  He also stated that he is applying for a
position at a police department and the state patrol and would like his
application expedited if possible and to have a current honorable
discharge.  His interview is scheduled for 20 January 2007 and any
assistance would be greatly appreciated.  He also states that he believes
he deserves a fair chance at a position with law enforcement agencies and
his discharge is holding him back.

3.  The applicant provides several documents from his Official Military
Personnel File (OMPF), and a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 March 1989.  The application submitted in this case is
dated 14 August 2006 but was received for processing 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's record shows he enlisted in the Army Reserve, Delayed
Entry Program on 2 August 1984.  He enlisted in the Regular Army on 23 July
1985.  The applicant successfully completed basic combat training at Fort
Dix, New Jersey, and advanced individual training at Aberdeen Proving
Ground, Maryland.  On completion of his advanced training, he was awarded
the military occupational specialty (MOS), 63W, Wheel Vehicle Repairer.  He
was advanced to pay grade E-4 on 1 March 1987.



4.  Charges were preferred against the applicant on 22 December 1988 for
disobeying a lawful command from his superior commissioned officer, to trim
or shave his mustache, or words to that effect, on 13 December 1988 (a
violation of Article 90, under the Uniform Code of Military Justice
[UCMJ]); for disobeying a lawful command from a senior noncommissioned
officer, to shave or trim his mustache, or words to that effect, on
13 December 1988, (a violation of Article 91, UCMJ); and for failing to go
to his appointed place of duty, to wit – 0530 formation adjacent to
building S-2612, on 22 December 1988 (Article 86, UCMJ).

5.  The applicant pleaded not guilty, but was found guilty by a summary
court-martial on 30 December 1988 of Charge I, Article 90, specification,
disobeying a lawful command of a commissioned officer on 13 December 1988;
Charge II, Article 91, specification, disobeying a lawful order of an NCO
on 13 December 1988; and Charge III, Article 86, specification, failing to
go to his appointed place of duty on 22 December 1988.  His sentence
consisted of a reduction to pay grade E-1, a forfeiture of pay, and
confinement for 30 days.  The applicant made a motion to dismiss Charge II
and its specification based on belief that it was similar to Charge I.  The
summary court-martial convening authority denied his motion.

6.  On 10 January 1989, the applicant's case was reviewed by the Chief,
Criminal Law, who found the sentence to be legally sufficient.

7.  All the documents containing the facts and circumstances surrounding
the applicant's separation are not present in the available records.
However, the applicant submitted a copy of his DD Form 214 which shows that
on 1 March 1989, he was discharged under the provisions of Army Regulation
635-200, chapter 14, paragraph 14-12c, for misconduct-commission of a
serious offense, in the pay grade of E-1.  He was furnished a general
discharge, with his service characterized as, under honorable conditions.
He had a total of 3 years, 6 months, and 13 days of creditable service and
25 days of lost time due to confinement.

8.  There is no evidence that the applicant applied to the Army Discharge
Review Board (ADRB) for an upgrade of his discharge within its 15-year
statute of limitations.

9.  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.

10.  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, or is
otherwise so meritorious that any other characterization would be clearly
inappropriate.  Whenever there is doubt, it is to be resolved in favor of
the individual.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, the Board presumes
Government regularity and believes that the applicant's administrative
separation was accomplished in compliance with applicable regulations, with
no procedural errors which would tend to jeopardize his rights.

2.  The evidence of record shows the applicant was discharged under the
provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12c, for
misconduct-commission of a serious offense.

3.  The applicant's record shows that charges were preferred against the
applicant for violation of Articles 90, 91, and 86, of the UCMJ, and was
found guilty of violations of these same articles by a summary court-
martial.

4.  The applicant's record contains a properly constituted DD Form 214. 
This document identifies the reason and characterization of his discharge. 


5.  The applicant contends that he felt he had proven this situation was a
one time problem.  However, the applicant has failed to adequately identify
or describe the one time problem is he referring to.  Due to the lack of
availability of additional facts and circumstances regarding his case the
Board is required to arrive at a decision based on the available facts and
circumstances.

6.  The applicant contends that he is applying for a position at a police
department and with the state patrol and would like to expedite if possible
and have a current discharge.  The Board does not change the character of
service for the purposes of a former servicemember obtaining employment
opportunities.

7.  There is no evidence in the applicant's records, and the applicant has
provided none, to show that he applied for an upgrade of his discharge to
the ADRB within its 15-year statute of limitations.

8.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 March 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 February 1992.  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

___JCR__  __DWT__  __REB__  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.


                                  _____Jeffrey C. Redmann_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060017118                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070118                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19890301                                |
|DISCHARGE AUTHORITY     |AR 635-200, chap 14-12c                 |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]