RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070018307 


	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

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 characterization of service be upgraded from general, under honorable conditions to honorable. 

2.  The applicant states, in effect, that his release from active duty under honorable conditions should be honorable.  He admits that he had an altercation with a noncommissioned officer, received nonjudicial punishment and lost his rank.  He subsequently chose to terminate his service and went home.  He served 2 years in the Individual Ready Reserve and received an Honorable Discharge Certificate.  He further states that he has reenlisted in the United States Army Reserve and is now serving on active duty.  He says that he is looking at other opportunities within the Federal sector for his career and wants his DD Form 214 corrected to show an honorable status. 

3.  The applicant provides copies of his DD Form 214; discharge orders from the United States Army Reserve; Honorable Discharge Certificate; welcome letter into the United States Army Reserve; certificate of training; certificates showing award of the Army Good Conduct Medal, Army Achievement Medal, and Army Commendation Medal; and two certificates of achievement.

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.  On 31 July 1986, the applicant enlisted in the Regular Army for 5 years.  He completed his initial training and was awarded military occupational specialty 88H1O (Cargo Specialist).  

3.  On 24 November 1986, the applicant was assigned for duty as a cargo handler with the 870th Transportation Company at Fort Eustis, Virginia.  He deployed with this unit to Saudi Arabia on 21 September 1991. 
4.  On 8 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.  The commander stated that the applicant had accepted two nonjudicial punishments, had received several counseling statements, and had demonstrated that he was a substandard Soldier with no motivation to work with the chain of command to become a productive Soldier.  

5.  On 8 April 1992, the applicant consulted with counsel, and elected not to make a statement in his own behalf.

6.  On 14 April 1992, the appropriate authority approved the recommendation for release from active duty (REFRAD) and directed that his service be characterized as under honorable conditions.  He further directed that the applicant be transferred to the Individual Ready Reserve.

7.  Accordingly, he was REFRAD under honorable conditions on 21 April 1992 and transferred to the United States Army Reserve Control Group (Reinforcement).  He had completed 5 years, 8 months and 20 days of creditable active service.

8.   On 2 August 1994, the applicant was discharged from the United States Army Reserve and given an Honorable Discharge Certificate. 

9.  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.

10.  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 REFRAD from the Regular Army was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of separation directed and the reasons therefore were appropriate considering all of the facts of the case.

3.   The applicant has provided documents to show the quality of his Regular Army active duty service, and argues that he should receive an upgrade.  However, these are not sufficiently mitigating to warrant an upgrade of his REFRAD. 

4.  Upon REFRAD from the Regular Army, the applicant was transferred to the IRR.  He was subsequently discharged from the IRR with a characterization of service of honorable.  However, this discharge has no bearing on the validity of his earlier Regular Army period of service.

5.  The applicant states that he has subsequently reenlisted in the USAR and is currently serving on active duty.  While this action is commendable, it is not sufficiently mitigating to warrant upgrading his characterization of service at the time of his earlier REFRAD from the Regular Army.  

6.  In view of the above, the applicant’s request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

 __LMD__  __JRM___  __JTM _   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




__    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.