MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  17 May 2000
	DOCKET NUMBER: AR999034769

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun
Mr. Lee Cates		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Fred N. Eichorn		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS: That his records be corrected to show that he was honorably separated from active duty.  He alleges he was coerced into taking a separation agreement with threats of another stay at the CCF (Correctional Custody Facility) and that his remaining tour would be made extremely difficult.  Being on drugs was the only reason he agreed to the separation agreement.  He provides evidence in support of his post-service achievements. On a copy of his DD Form 214, which was provided, he indicates he was qualified to drive all wheel vehicles and that he received his GED in Nuremberg, Germany (Merrill Barracks).

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD: The applicant's military records show:

On 19 May 1981, the applicant enlisted in the Army.  He completed his required training and was awarded MOS 63B (Light Wheeled Vehicle Mechanic).  He was advanced to pay grade E-4, effective 1 December 1982.

During the period 20 November 1981 to 29 December 1983, he served in a unit in Germany.

On 5 April 1984, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for the wrongful use of marijuana.  His punishment was a reduction to pay grade E-2.

On 18 October 1984, he accepted NJP under Article 15, UCMJ for the wrongful use of marijuana on 10 May 1984, the wrongful possession of marijuana on        7 October 1984 and the wrongful appropriation of Government equipment on or about 7 October 1984.  His punishment included the reduction to pay grade E-1, the forfeiture of $298 pay per month for 2 months, extra duty for 45 days and restriction for 45 days.  He did not appeal the imposed punishment.

On 25 October 1984, the unit commander notified the applicant of his intent to recommend his separation for unsatisfactory performance and advised him of his rights.

On 29 October 1984, the applicant acknowledged the commander’s notification, waived his rights and did not submit statements in his own behalf.

On 29 October 1984, the commander recommended his separation under chapter 13, Army Regulation 635-200 based on unsatisfactory performance of duty.  The appropriate separation authority approved the request and directed his discharge with the issuance of a General Discharge Certificate.

On 7 November 1984, he was separated under honorable conditions under the above-cited Army Regulation.  His DD Form 214 indicates he had 3 years,          5 months and 19 days of creditable service and that he was not a high school graduate or equivalent.  

Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.  Paragraph 3-7 provides that an honorable discharge is a separation with honor.  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 inappropriate.

Army Regulation 600-8-22 (Military Awards) indicates, in pertinent part, that the Driver and Mechanic Badge is awarded to drivers, mechanics, and special equipment operators to denote the attainment of a high degree of skill in the operation and maintenance of motor vehicles.  To qualify for the driver portion, a soldier must (1) qualify for and possess a current U.S. Government Motor Vehicles Operator’s Identification Card, issued as prescribed by AR 600-55;     (2) occupy a duty position with title of driver or assistant driver of Army vehicles for a minimum of 12 consecutive months, or during at least 8,000 miles and had no Army motor vehicle accident or traffic violation recorded on his or her Equipment Operator’s Qualification Record (Except Aircraft)); or, (3) performed satisfactorily for a minimum period of 1 year as an active qualified driver instructor or motor vehicle driver examiner.  There is no evidence to show he met the requirements for award of this badge.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 November 1984, the date he was separated from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 7 November 1987.

The application is dated 6 December 1999 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________ EXCUSE FAILURE TO TIMELY FILE

________  ________  ________ GRANT FORMAL HEARING

__CF___  __RW____  __FE___ CONCUR WITH DETERMINATION

		
Carl W. S. Chun
	                                        Director, Army Board for Correction
	                                                      of Military Records

INDEX

CASE ID	AR1999034769	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
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         1.110	Separation upgrade	
2.		
3.		
4.		
5.		
6.