IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100008110 


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 discharge under other than honorable conditions be upgraded and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect his award of the Army Good Conduct Medal (AGCM), his completion of the Primary Noncommissioned Officer Course (PNCOC), and his service in war conditions while assigned to Korea.

2.  The applicant states that he was awarded the AGCM, he attended PNCOC, and he served in Korea on the demilitarized zone in war conditions; however, his DD Form 214 does not reflect this information.  Additionally, he desires to have his discharge upgraded.

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 6 December 1977 for a period of 3 years, assignment to the 101st Airborne Division, and training as an infantryman.  He completed his basic training at Fort Leonard Wood, Missouri, and his advanced individual training at Fort Benning, Georgia, before being transferred to Fort Campbell, Kentucky.

3.  He was assigned to Korea on 25 August 1979 and was advanced to pay grade E-4 on 10 October 1979.  He was assigned to the 1st Battalion, 17th Infantry Regiment, at Camp Casey in Tongduchon, South Korea.  On 26 November 1979, he was honorably discharged for the purpose of immediate reenlistment.

4.  On 27 November 1979, he reenlisted for a period of 3 years with a waiver for lost time.  He completed the 4-week combat arms PNCOC in 1980.  He departed Korea on 20 August 1980 for assignment to Fort Carson, Colorado.  He was promoted to the rank of sergeant on 26 October 1980.

5.  On 4 February 1981, the applicant's commander initiated a recommendation to bar the applicant from reenlistment.  He cited that the applicant had written seven dishonored checks between 1 December and 22 December 1980 as the basis for his recommendation.  The applicant elected not to submit matters in his own behalf.  The brigade commander approved the bar to reenlistment on 25 February 1981.

6.  On 23 March 1981, the applicant's commander initiated action to separate the applicant from the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to the commission of a serious offense.  He cited that the applicant had established a pattern of showing dishonorable failure to pay just debts as evidenced by the fact that he had written over $2100.00 in bad checks and had not made restitution as the basis for his recommendation.  After consulting with counsel, the applicant waived all of his rights.  He also wrote $700.00 worth of additional bad checks after the notification of his recommended separation.

7.  On 25 June 1981, nonjudicial punishment was imposed against him for being absent without leave from 3 June 1981 to 8 June 1981.  His punishment consisted of a reduction to pay grade E-4, a forfeiture of pay (suspended for 60 days), and extra duty.

8.  The appropriate authority approved the recommendation for separation on 3 August 1981 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 12 August 1981 under the provisions of Army regulation 635-200, paragraph 
14-33b(3), for misconduct due to an established pattern showing dishonorable failure to pay just debts.  He had served 3 years, 8 months, and 1 day of total active service and his DD Form 214 issued at the time of his discharge shows he was awarded the AGCM and his marksmanship badges.  In item 14 under military education is the entry "NA."  There is no entry regarding his service in Korea or service in a hostile fire zone.

10.  On 3 June 1994, he applied to the Army Discharge Review Board for an upgrade of his discharge.  He contended that his discharge was based on involvement with civilian authorities and not military authorities and for that reason his discharge should be upgraded to give him a fresh start.  The board found his discharge was both proper and equitable and voted to deny his request on 24 December 1996.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes failure to pay just debts and drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  Paragraph 3-7b of Army Regulation 635-200 provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time provides that in-service training courses for combat skills would not be listed in item 14 of the DD Form 214.  For personnel serving in a hostile fire zone, the country and the period served will be entered in item 18 (Remarks) of the DD Form 214.  Hostile fire pay was authorized in South Korea from 1 April 1968 to 1 September 1973.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the characterization and the narrative reason for separation were appropriate for the circumstances of his case and he has failed to show otherwise.  Accordingly, there is no basis for an upgrade of his discharge.

3.  The applicant was awarded the AGCM and it is properly annotated on his DD Form 214.  Accordingly, no further action is required on that issue.

4.  The applicant completed the combat arms PNCOC; however, combat skills courses are not authorized for entry on the DD Form 214.  Accordingly, there is no basis to approve that portion of the applicant's request.

5.  The applicant's contention that his service in war-like conditions in the Republic of Korea in the 1979-1980 time frame should be reflected on his DD Form 214 has been noted and found to lack merit.  Although he was assigned to a forward-deployed unit of the 2d Infantry Division in Korea, he was not authorized hostile fire pay and as such his service in Korea does not qualify for entry on his DD Form 214 as a deployment.  Accordingly, there is no basis to make the correction he is requesting.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



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)                                         AR20100008110



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ABCMR Record of Proceedings (cont)                                         AR20100008110



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