RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070017116 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 general discharge, under honorable conditions, be upgraded to an honorable discharge.

2.  The applicant states, in effect, that it has been longer than the required period and he is now able to ask for an upgrade.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows he enlisted in the Regular Army on 3 April 1985.  He successfully completed basic combat training and advanced individual training at Fort Benning, Georgia.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 24 September 1985, the applicant was punished under Article 15, of the UCMJ (Uniform Code of Military Justice), for failing to go to his appointed place of duty on 3 September 1985.  His punishment consisted of a forfeiture of pay and 14 days restriction and extra duty.

4.  On 25 October 1985, the applicant was punished under Article 15, of the UCMJ, for failing to go to his appointed place of duty on 21 October 1985.  His punishment consisted of 7 days confinement.



5.  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 30 April 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12a, for misconduct-minor disciplinary infractions, 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 1 year and 28 days of creditable service.  
 
6.  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.

7.  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, abuse of illegal drugs, and conviction 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.  

8.  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.  The applicant’s record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of the DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 635-200, chapter 14, paragraph 14-12a, which stood for misconduct-minor disciplinary infractions.  


2.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations for his apparent misconduct, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant alleges that it has been longer than the required period and he is now able to ask for an upgrade.  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.

4.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MDM _  __JCR___  __RCH__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




______Mark D. Manning_____
          CHAIRPERSON




INDEX

CASE ID
AR20070017116
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080313
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19860430
DISCHARGE AUTHORITY
AR 635-200, chapter 14-12a
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.