IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100011150


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 his general discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states following his discharge he set about building his life.  He joined a church and started a business.  He became a member of the Union of Operating Engineers, a labor union representing primarily construction workers who work as heavy equipment operators, mechanics, surveyors, and stationary engineers, who maintain heating and other systems in buildings and industrial complexes.  He also worked in the Engineering Department of the Claremont Resort and Spa, Berkeley, CA until he was laid off due to the economy.  He is now training in computer technology.  He has his Merchant Mariner's Document allowing him to work as an ordinary seaman aboard merchant ships.  He also has his Transportation Worker Identification Credential allowing him unescorted access to secure areas of port facilities, outer continental shelf facilities, and vessels regulated under the Maritime Transportation Security Act of 2002.

3.  The applicant provides:

* a statement
* a copy of his union card
* a copy of his Merchant Mariner's Document
* a copy of his Transportation Worker Identification Credential



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 served in the Regular Army from 31 March 1977 to 24 April 1985, a total of 8 years and 24 days.  He was trained in and worked in military occupational specialty (MOS) 41J (Office Machine Repairer).  He obtained the rank of sergeant (SGT)/E-5 on 13 September 1980.

3.  The applicant served roughly half of his active service in the Republic of Korea.  In March 1984, he returned to Korea for his third permanent change of station move and was assigned to Company D, 702nd Maintenance Battalion, 2nd Infantry Division.  He began to display an unsatisfactory attitude and to experience various acts of indiscipline.

4.  The applicant's indiscipline consisted of failure to repair (stand formation, be at his appointed place of duty), black marketing, possession of an invalid pass, and impersonating a noncommissioned officer (NCO).  He received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice on two occasions.  Indisciplines were documented as follows:

* 1 October 1984 – absent from his unit without proper authority (received NJP)
* 2 October 1984 – failure to repair
* 20 November 1984 – failure to repair (received field grade NJP and was reduced to specialist four (SP4/E-4))
* 12 December 1984 – failure to repair (2 offenses)
* 9 January 1985 – apprehended by military police (MPs) for black marketing
* 10 January 1985 – failure to repair


* 12 January 1985 – failure to repair
* 18 March 1985 – failure to repair
* 24 March 1985 – apprehended by MPs for pass violation and impersonating an NCO
* 25 March 1985 – failure to repair

5.  On 29 January 1985, the applicant's company commander initiated action to separate him for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200.  The commander told him he had become a serious disciplinary problem within the unit because of his poor attitude and lack of self discipline and that his continued presence would have an adverse impact on military discipline, good order, and morale within the unit.  He was informed of his rights, including the right to a hearing before an administrative board of officers.  On the same date, the applicant acknowledged notification, consulted with legal counsel, and elected to appear before a board of officers.

6.  On 1 April 1985, at Camp Casey, Korea, a board of officers convened to hear testimony and review evidence pertaining to whether the applicant should be discharged from the Army for unsatisfactory performance.  The board determined while the applicant demonstrated satisfactory job performance as far as technical skills, his willful disregard for Army regulations and his inability to follow pass policies, coupled with allegations concerning his black market activities, rendered his overall performance unsatisfactory.  The board recommended immediate discharge with an Honorable Discharge Certificate.

7.  On 10 April 1985, the approving authority approved the applicant's separation for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200 and directed that he be issued a GD.

8.  The applicant was transferred from Korea to Oakland Army Base, Oakland, CA.  On 24 April 1985, he was separated with a GD.

9.  There is no record the applicant petitioned the Army Discharge Review Board seeking a discharge upgrade during that board's 15-year statute of limitations.

10.  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.

11.  Army Regulation 635-200 provides that Soldiers with more than 6 years of total active and Reserve military service at the time of separation have the right to present their case using administrative board procedures.  Furthermore, no separation authority will direct discharge if a board recommends retention.  Neither will the separation authority authorize the issuance of a discharge certificate of less favorable character than that recommended by the board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his GD be upgraded to an HD.

2.  The applicant was separated for unsatisfactory performance under the provisions of chapter 13, Army Regulation 635-200.  The record clearly shows the applicant, although technically proficient in his MOS, had become a serious disciplinary problem within his unit because of his poor attitude and a lack of self discipline.  His continued presence in the unit created an adverse impact on military discipline, good order, and morale.  His discharge was warranted for unsatisfactory performance.

3.  The applicant was separated with 8 years and 24 days of active service.  He was, therefore, entitled to an administrative separation board hearing and he did not waive this entitlement.  His board was held on 1 April 1985 at Camp Casey.  The board recommended discharge with an Honorable Discharge Certificate.

4.  The separation authority accepted the administrative separation board's recommendation to discharge the applicant; however, the separation authority did not direct an HD as recommended by the board, but instead directed the issuance of a GD.

5.  Army Regulation 635-200, then in effect, prohibited the separation authority from authorizing the issuance of a discharge certificate of less favorable character than that recommended by the board.



6.  The applicant's discharge was improper as to characterization of service and should be upgraded.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  voiding his DD Form 214; and

   b.  issuing him a new DD Form 214 and an Honorable Discharge Certificate of the same date in lieu of the General Discharge Certificate now held by him.



      _______ _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)                                         AR20100011150



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ABCMR Record of Proceedings (cont)                                         AR20100011150



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