RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070002427 


	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

Ms. Jeanne Marie Rowan

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 his discharge be upgraded. 

2.  The applicant states his discharge is unjust and that he was waiting for a medical review board when he was processed for separation.  The applicant further states the dates of his absent without leave (AWOL) status should be 5 February 1990 through 12 February 1990, which is the period immediately following the death of his stepfather.  He also expresses anger toward his chain of command for their actions during his separation process.  

3.  The applicant provides a personal statement, copies of his discharge certificates, letter of appreciation, personal records of medical care, his father's obituary, and his parent's marriage certificate. 
 
CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 April 1990, the date of his discharge.  The application submitted in this case is dated 16 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 18 June 1987, the applicant enlisted in the U. S. Army.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 13N (Lance Crewmember).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

4.  The applicant's records do not show any significant acts of valor during his military service. 

5.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 February 1990, for possession of marijuana; failure to obey lawful orders of superior commissioned officers on or about 29 January 1990; and failure to go to his appointed place of duty on or about 29 January 1990.  He was reduced to private/pay grade E1, forfeiture of $362.00 per month for two months, and extra duty for 30 days.

6.  The applicant's records further show that he received counseling on three occasions for the following: on 18 January 1990, for driving with a suspended license and driving an unregistered privately owned vehicle; on 19 January 1990, for missing formation; and on 1 March 1990, for missing formation on 29 January 1990, and for unspecified debts to unknown individuals or businesses.

7.  On 4 April 1990, the unit commander notified the applicant of his intent to separate him under the provisions of Chapter 13, Army Regulation 635-200 (Enlisted Personnel-Personnel Separations), by reason of Unsatisfactory Performance citing the applicant missed battery movements and formations, failure to report to his appointed place of duty, being absence without authorization, and abuse of marijuana, as the basis for the action.

8.  On 5 April 1990, the applicant refused to consult with legal counsel.  The applicant waived his right to have his case considered by an administrative board of officers, his right to personal appearance before a board of officers, and representation by counsel.  He also elected not to submit a statement in his own behalf.

9.  On 5 April 1990, the separation authority directed the applicant's discharge under the provisions of Chapter 13, Army Regulation 635-200, for unsatisfactory performance, and that he receive a general discharge.  On 18 April 1990, the applicant was discharged accordingly.  The separation document (DD Form 214) the applicant was issued at the time of his discharge confirms he was discharged and his characterization of service was under honorable conditions.  This form further confirms that he completed a total of 5 years, 10 months, and 26 days of creditable active military service and that he accrued 7 days of time lost due to absences without authorization.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in Block 29 (Dates of Time Lost During this Period) the entry "900302-900308."  A review of his personnel service record found official documents that support this period lost due to absent without leave accountability status.  His commander or designated representative authenticated the personnel action forms.


11.  The applicant provided a letter of appreciation from his battalion commander dated 19 July 1989, thanking him for his service. 

12.  The applicant provided a DA Form 31 (Request and Authority for Leave) dated 5 February 1990, authorizing him one day of emergency leave starting on 5 February 1990, to Blackburne, Missouri from Fort Sill, Oklahoma, his duty station.  He provided a copy of the obituary from the local newspaper which shows his step-father had passed away on 2 February 1990.   He further provided a copy of his parent's marriage certificate dated 12 May 1980.  

13.  The applicant provided 8 separate medical documents from his military service records which show that he was treated for lower back pain as the result of a work related injury.  These documents show that the applicant received physical therapy for his back pain from on or about 3 January 1990 to his separation on 18 April 1990.  

14.  The applicant provided an undated copy of his DA Form 2-1 (Personnel Qualification Record), Section III (Service, Training and other Date) with dates of unauthorized absence from 2 March 1990 to 8 March 1990.

15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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's contentions that his discharge was unjust and that his records incorrectly show the dates he was AWOL were carefully considered and determined to be without merit.  The applicant's contention that his indiscipline was as a result of his medical condition was also carefully considered and determined to be without merit.
2.  There is no evidence in the available records and the applicant has not provided sufficient evidence that the period noted in his official military personnel file for his AWOL is inaccurate.  Absent evidence to the contrary, the applicant's records are correct as currently constituted.

3.  The evidence of record confirms that the applicant’s discharge processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is noted that the applicant, waived his right to legal counsel, elected to waive his right to have his case considered by a board of officers and he chose not submit a statement in his own behalf.  

4.  The applicant’s disciplinary history shows use of marijuana, absent without leave, failure to go to his appointed place of duty, and failure to obey lawful orders of superiors.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. 

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

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 April 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 April 1993.  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

__RJO__  __MJA___  __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
AR
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
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.