RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060017800 


	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:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroeder

Member

Mr. Chester A. Damian

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 under honorable conditions be upgraded to honorable. 

2.  The applicant states that the reason for his discharge was poor duty performance.  He says that he was in a car accident while on leave and received a severe back injury.  His military occupational specialty was a wireman and climbing poles was a required part of his job.  He states that he received physical therapy once but was never able to perform his job duties.  He suffered from depression and spent time in the mental ward.  He requested to be retrained but it was in the interest of the United States Army to discharge him.  He further states that he has always felt his discharge for poor duty performance and a general discharge under honorable conditions was never warranted.  

3.  The applicant provides a copy of his social security card and California driver’s license.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 December 1989, the date of his discharge.  The application submitted in this case is dated 8 December 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.  On 18 January 1989, the applicant enlisted in the Army for 4 years.  He successfully completed his initial training and was awarded MOS 31L1O (Wire Systems Installer).

4.  On 11 August 1989, the applicant was assigned for duty as a wire system installer with the 25th Signal Battalion, Fort Bragg, North Carolina.

5.  On 9 October 1989, the applicant was counseled about two dishonored checks that he had written in the amounts of $3.35 and $5.70.
6.  On 25 October 1989, the applicant was counseled for missing company formation on 11, 12, 13, 16, and 25 October 1989.  

7.  On 9 November 1989, the applicant was counseled for failure to report for duty. 

8.  On 15 November 1989, the applicant’s commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance.  

9.  On 15 November 1989, the applicant consulted with counsel, and elected not to make a statement in his own behalf.

10.   The applicant’s records do not contain a copy of a separation medical examination or a mental evaluation report.

11.  On 1 December 1989, the administrative discharge proceedings were reviewed by the Judge Advocate General and found to be legally sufficient.

12.  On 13 December 1989, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 
21 December 1989.  He had completed 11 months and 4 days of creditable active duty.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statue of limitations.

15.  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.





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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 December 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
20 December 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

____JRS __  ___LDS__  __CD___  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
AR20060017800
SUFFIX

RECON

DATE BOARDED
20070605
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19891221
DISCHARGE AUTHORITY
 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4900
2.

3.

4.

5.

6.