RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          8 November 2005
      DOCKET NUMBER:  AR20050002127


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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 general discharge be upgraded to
honorable and that his award of the Expert Infantryman Badge (EIB) be added
to his report of separation (DD Form 214).

2.  The applicant states that he was discriminated against and that his
discharge for unsatisfactory performance was racially motivated.  He goes
on to state that he was not afforded an opportunity to submit matters in
his own behalf or to seek the assistance of legal counsel.  He continues by
stating that there was no evidence to substantiate the allegation of
unsatisfactory performance and his discharge is hindering his ability to
seek better employment opportunities.

3.  The applicant provides five outstanding performance awards from his
civilian employer and a completion certificate for a math refresher course.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 5 December 1984.  The application submitted in this case is
dated 3 November 2004 and was received on 9 February 2005.

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 limitation 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.  He enlisted in Louisville, Kentucky, on 22 February 1979 for a period
of 3 years and training as a material supply specialist and assignment to
Fort Bragg, North Carolina.

4.  He completed his basic combat training and was transferred to Fort Lee,
Virginia, to undergo his advanced individual training (AIT) as a material
supply handler.  He did not complete that training and underwent AIT at
Fort Benning, Georgia, as a light weapons infantryman.  He successfully
completed that training and was transferred to an infantry company in
Boeblingen, West Germany.  He was advanced to the pay grade of E-4 on 1
August 1981.

5.  On 4 December 1981, he reenlisted for a period of 4 years, assignment
to Fort Polk, Louisiana, and a selective reenlistment bonus (SRB).  On
16 December 1982, orders were published at Fort Polk awarding him the EIB.

6.  On 26 December 1983, he was transferred to Korea and was assigned to an
infantry company in the 2nd Infantry Division.

7.  On 3 July 1984, nonjudicial punishment (NJP) was imposed against him
for disobeying a lawful order from a superior noncommissioned officer.  His
punishment consisted of a reduction to the pay grade of E-2 and
restriction.  He did not appeal the punishment.

8.  During the period of July through November 1984, the applicant was
repeatedly counseled regarding his substandard duty performance, conduct,
shirking responsibility, lack of initiative, failure to follow
instructions, failure to do his share of the squad’s work, failure to pay
just debts and failure to respond to repeated counseling.

9.  On 15 November 1984, he underwent a mental status evaluation and was
deemed to be mentally responsible, able to distinguish right from wrong and
able to adhere to the right.

10.  On 17 November 1984, the applicant’s commander notified the applicant
in writing that he was initiating action to separate him from the service
for unsatisfactory performance under the provisions of Army Regulation 635-
200, chapter 13.  He cited as the basis for his recommendation the
applicant’s repeated substandard performance, failure to respond to
repeated counseling from his chain of command, failure to be in proper
uniform and pay his just debts, shirking responsibility, and lack of
initiative.  He also advised the applicant of his right to submit a
statement in his own behalf and to consult with counsel.

11.  After consulting with counsel, the applicant elected in writing not to
submit a statement in his own behalf.

12.  On 21 November 1984, the appropriate authority approved the
recommendation for discharge and directed that he be furnished a General
Discharge Certificate.

13.  Accordingly, he was discharged under honorable conditions on 5
December 1984, under the provisions of Army Regulation 635-200, chapter 13,
for unsatisfactory performance.  He had served 5 years, 9 months and 14
days of total active service and his DD Form 214 issued at the time of his
discharge shows that he was awarded the Good Conduct Medal, the Army
Service Ribbon, and the Overseas Service Ribbon.

14.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

15.  Army Regulation 635-200, chapter 13, in effect at the time,
established policy and provided guidance for eliminating enlisted personnel
for unsatisfactory performance and who were unsuitable for further military
service.  An individual could be separated for unsatisfactory performance
if it was determined that the member will not develop sufficiently to
participate satisfactorily in further training and/or become a satisfactory
Soldier.  Although an honorable or general discharge may be issued, a
discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation under the provisions of Army
Regulation 635-200, chapter 13, was administratively correct and in
conformance with applicable regulations with no indication of any
violations of the applicant’s rights.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate under the circumstances.

3.  The applicant’s contentions and supporting documents have been noted by
the Board.  However, they are not sufficiently mitigating to warrant relief
when compared to his otherwise undistinguished record of service.  It also
appears that he was given every opportunity to improve his performance and
chose not to do so.

4.  However, the applicant was awarded the EIB and it appears that an
administrative oversight resulted in the omission of that award from his DD
Form 214 at the time of his discharge.  Accordingly, it should be added at
this time.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

___sk___  __dja___  __drt___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief and to excuse failure to timely
file.  As a result, the Board recommends that all Department of the Army
records of the individual concerned be corrected by adding his award of the
EIB to his DD Form 214.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
upgrading his discharge to honorable.



                 Stanley Kelley
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050002127                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(GD)                                    |
|DATE OF DISCHARGE       |1984/12/05                              |
|DISCHARGE AUTHORITY     |AR635-200/CH13 . . . . .                |
|DISCHARGE REASON        |UNSAT PERF                              |
|BOARD DECISION          |(PARTIAL GRANT)                         |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |158/EIB                                 |
|1.107.0112              |                                        |
|2.144.4900              |572/A49.00                              |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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