RECORD OF PROCEEDINGS


	IN THE CASE OF:	    


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070002340 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn II

Member

Mr. Michael J. Flynn

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 discharge under honorable conditions be upgraded to honorable. 

2.  The applicant states that he would like to know if his discharge could be changed to honorable. 

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), a recruitment letter from the governor of New Jersey for the New Jersey Army National Guard, and an application to the Army Discharge Review Board (ADRB) for review of his discharge. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 January 1985, the date of his discharge.  The application submitted in this case is dated 4 February 2007.

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 20 April 1983, the applicant enlisted in the Regular Army for 3 years.  He successfully completed his initial training and was awarded military occupational specialty 13B1O (Field Artillery).  He attained the rank of private first class on 
20 April 1984.

4.  On 7 January 1985, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to obey a lawful order to have his room ready for inspection.  The punishment included a forfeiture of $50.00 pay per month for 1 month.




5.  On 22 January 1985, a medical examination found him to be qualified for separation with a physical profile of 1.1.1.1.1.1.  At a mental status evaluation the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  The applicant was mentally responsible.  He was able to distinguish right from wrong and to adhere to the right.

6.  On 25 January 1985, 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.  He further stated that the applicant refused to adhere to the policies and standards of the United States Army.  Extensive counseling had been conducted in an attempt to rehabilitate him; however, his duty performance remained unsatisfactory.

7.  On 25 January 1985, the applicant consulted with counsel, and elected not to make a statement in his own behalf.
  
8.  On 28 January 1985, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate.  He further directed that the applicant not be transferred to the Individual Ready Reserve.

9.  Accordingly, he was discharged under honorable conditions on 31 January 1985.  He had completed 1 year, 9 months and 11 days of creditable active service.

10.  On 8 November 1996, the ADRB denied the applicant's petition to upgrade his discharge.

11.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

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 exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 8 November 1996.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 7 November 1999.  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

____MJF___  __RJO__  __JTM   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.




_____John T. Meixell   
      CHAIRPERSON




INDEX

CASE ID
AR20070002340
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.4900
2.

3.

4.

5.

6.