IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100009316 


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 upgrade of his general discharge to honorable.

2.  The applicant states he was never given a chance to prove he was Army material.  He asked his first sergeant and commander for help but nothing was done.  He even offered his assistance in identifying [guilty] people, military and Korean civilians but, again, nothing was done.

3.  The applicant provides no documents to support his request. 

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 Army on 27 January 1987.  He completed training as a clerk typist and reported for duty in Korea on 2 July 1987.

3.  On 28 January 1988 he made a sworn official statement about losing his ration control card and reporting it missing.  He also denied purchasing any controlled high value electronic items.

4.    His record of indiscipline evidences the following:

* 3 November 1987, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for absence from his appointed place of duty (AAPD)
* 16 February 1988, counseled for needing a haircut and AAPD
* 22 February 1988, counseled for AAPD by missing his driver's test after been reminded of it several times, including on the day of the test
* 4 March 1988, counseled for AAPD 2 days in a row
* 8 March 1988, NJP for AAPD, by failing to report to emergency sick call
* 9 March 1988, counseled for breaking restriction and failing to prepare for barracks inspection
* 21 March 1988, NJP for making a false sworn statement about his ration control card and buying controlled items

5.  The applicant's behavior was normal at a mental status evaluation with a mental health medical officer on 21 March 1988.  He was alert and fully oriented.  He exhibited an unremarkable affect and clear thinking with normal thought content.  He was considered to have the capacity to understand and participate in the proceedings.  He was mentally responsible and met retention medical standards.  The remarks section of the DA Form 3822-R (Report of Mental Status Evaluation) did not indicate that the applicant offered any information about his situation.

6.  On 25 March 1988 the company commander informed the applicant that he intended to recommend separation with a general discharge under honorable condition due to a pattern of misconduct.  This included two instances of black marketeering, false swearing, numerous instances of AAPD, and breaking restriction.  

7.  The applicant was advised of his rights to consult with and be represented by an officer of the Judge Advocate General's Corps and/or, at his own expense, with a civilian lawyer.  He also had the right to submit statements in his own behalf and to obtain copies of documents being forwarded to the separation authority.

8.  The applicant acknowledged the notification and declined to consult with counsel.  

9.  The commander recommended separation with a general discharge under honorable conditions due to a pattern of misconduct and waiver of rehabilitative transfer.   The separation authority waived rehabilitative transfer, approved the separation, and directed the issuance of a general discharge under honorable conditions.

10.  On 20 April 1988 the applicant was separated under the provisions of Army Regulation 635-200, paragraph 14-4B.  He had 1 year, 2 months and 24 day of total active duty service.

11.  Army Regulation 635-200 (Personnel Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

12.  On 22 November 1988 the Army Discharge Review Board denied the applicant's request to upgrade his discharge.

13.  Army Regulation 635-200, paragraph 3-7a, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was never given a chance to prove he was Army material.  He asked his first sergeant and commander for help but nothing was done.  He even offered assistance in identifying [guilty] people, military and Korean civilians but, again, nothing was done.

2.  Considering that the applicant accepted NJP for making a false official statement about his ration control card and buying controlled high value items, his claim that he tried to help the authorities is specious.
3.  There is no evidence of record to substantiate the applicant's claim that military authorities were aware of the type or extent of his personal problems. The applicant would not discuss his problems during the 21 March 1988 mental status evaluation.

4.  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.

5.  The general discharge under honorable condition seems lenient considering all the facts of the case.

6.  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)                                         AR20100009316



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)