IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080008084
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his general discharge under honorable conditions be upgraded to honorable. He further requests that his Certificate of Release or Discharge from Active Duty (DD Form 214) show his overseas service.
2. The applicant states that there is no error in his records. He just wants his discharge upgraded to honorable and to show that he served overseas
3. The applicant provides a copy of his DD Form 214.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 28 September 1982, the applicant enlisted in the Regular Army for
3 years. He completed his initial training and was awarded military occupational specialty (MOS) 13F (Engineer Tracked Vehicle Crewman). He was subsequently assigned to Fort Hood, Texas.
3. On 1 December 1983, the applicant was promoted to specialist four, pay grade E-4.
4. On 14 June 1984, the applicant was placed on assignment for duty in the Republic of Korea.
5. On 27 August 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave during the period from 18 July to 1 August 1984 and for disobeying a lawful order. The punishment included reduction to pay grade E-2 and a forfeiture of $250 pay per month for 2 months. The applicant did not appeal the punishment.
6. On 31 August 1984, the applicant was assigned for duty as an engineer track vehicle crewman with the 2nd Engineer Battalion, in the Republic of Korea.
7. The applicant received the following counseling statements:
a. on 12 November 1984 for missing an accountability formation;
b. on 4 December 1984 for missing an accountability formation and physical training; and
c. on 5 December 1984 he was informed that his misconduct could lead to his separation from the military.
8. On 4 December 1984, the applicant accepted NJP for failing to go to his appointed place of duty. The punishment included 14 days extra duty and restriction.
9. On 12 December 1984, the applicants commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, Chapter 13, for unsatisfactory performance. The applicant subsequently waived all of his rights to include consulting with counsel.
10. On 12 December 1984, the appropriate authority approved the recommendation for discharge and directed that he be issued a General Discharge Certificate. He was not to be transferred to the United States Army Reserve. He was subsequently returned to the United States. He completed
4 months and 12 days overseas service in the Republic of Korea.
11. Item 12f (Foreign Service) of the applicant's DD Form 214 shows that he served 4 months and 12 days of overseas service.
12. Accordingly, he was discharged under honorable conditions on 9 January 1985. He had completed 2 years, 2 months, and 28 days of creditable active service and had 14 days lost time due to AWOL.
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 commanders judgment, the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier.
DISCUSSION AND CONCLUSIONS:
1. The applicants 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. The applicant's DD Form 214 clearly shows that he served overseas for a period of 4 months and 12 days.
5. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X___ ___X___ 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.
__________X_____________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20070016793
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ABCMR Record of Proceedings (cont) AR20080008084
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