RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  2 August 2007
	DOCKET NUMBER:  AR20070003353 


	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. Curtis L. Greenway

Chairperson

Mr. Robert W. Soniak

Member

Ms. Karmin S. Jenkins

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, in effect, that he never did anything that should have resulted in disciplinary action.  He further states that he associated with a group of Soldiers, a few of whom were bad; however, his first sergeant punished the entire group.  He therefore believes that his discharge should be upgraded to honorable. 

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 22 April 1992, the date of his discharge.  The application submitted in this case is dated 21 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 21 November 1990, the applicant enlisted in the Regular Army for 4 years. He successfully completed his initial training and was awarded military occupational specialty (MOS) 13B1O (Field Artillery).  He attained the rank of private first class on 21 November 1991.

4.  On 19 December 1991, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty at the prescribed time; for willfully disobeying a lawful order from a noncommissioned officer; and for wrongfully making a false statement under oath.  The punishment included reduction to private, pay grade E2, a forfeiture of $199.00 pay per month for 1 month, and 14 days restriction and extra duty.

5.  On 12 March 1992, a medical examination found him to be qualified for separation with a physical profile of 111111.  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 13 March 1992, the applicant’s first sergeant wrote a memorandum for record, in which he stated that the applicant had been counseled for disobeying a lawful order; for missing formations on numerous occasions; for suspected larceny and house breaking; and for making false statements.   

7.  On 13 March 1992, the applicant’s platoon sergeant wrote a memorandum for record, in which he stated that he had counseled the applicant for writing bad checks; for failing to report for duty; for disobeying a lawful order; for breaking pass privileges; and for uniform violations.  He also stated that the applicant had received two NJP punishments, one of which was a summarized action properly retained by the unit commander.  

8.  In an undated memorandum, the applicant’s commander notified him of his intention to separate him from the service for unsatisfactory performance. 

9.  On 30 March 1992, the applicant acknowledged receipt of the notification.  The applicant consulted with counsel and elected to make statements in his own behalf.  He asked his commander to not separate him from the service because he had a child that needed his care and a father with cancer who also needed his help.  He further stated that if he had to be separated, he would like to have an honorable discharge, otherwise it would be hard to get a good job.  In a second statement, he added that he was one of the best privates in his battery and was very knowledgeable about his MOS.  

10.  On 7 April 1992, 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 rehabilitation would not be in the best interest of the United States Army as it would not produce a quality Soldier.  He recommended that the applicant receive a general discharge.



11.  On 7 April 1992, 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.

12.  Accordingly, he was discharged under honorable conditions on 22 April 1992.  He had completed 1 year, 5 months, and 2 days of creditable active service.

13.  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.

14.  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 22 April 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
21 April 1995.  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

__RWS__  __KSJ __  __CLG       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.




__    Curtis L. Greenway __
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
20070802 
TYPE OF DISCHARGE
GD,
DATE OF DISCHARGE
19920422
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.