IN THE CASE OF:	  

		BOARD DATE:	  6 March 2012

		DOCKET NUMBER:  AR20110017134 


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:

* an upgrade of his general discharge to an honorable discharge
* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show the:

* "Korean Occupation Medal"
* "Air Assault Wings" (correction known as the Air Assault Badge)
* 3-year service stripe

2.  The applicant states he has matured a lot since his discharge and he would like to make his situation different for his family's sake.  His discharge has always bothered him because he tried to present himself as a good Soldier and a solid citizen.  He regrets his indiscretions tarnished the things he worked so hard to achieve.  He deeply regrets the mistakes he made and he has learned from them.

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 3 August 2011
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), dated 3 August 2011


* 2 letters of reference/support, dated 6 June and 1 August 2011
* 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 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 19 August 1987.  He completed one station unit training at Fort Benning, GA, and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained on active duty was specialist (SPC)/E-4.

3.  His record contains 35 counseling forms/statements/papers ranging from
6 March 1989 to 22 June 1990.  These forms show he was counseled numerous times for:

* Failing to follow instructions
* Failing to maintain personal area and room to standard
* Slow at accomplishing tasks
* Lack of motivation
* Disobeying lawful orders
* Missing equipment
* Physical appearance (weight)
* Inattention to detail
* Poor personal appearance (uniform)
* Failing to comply with a court order (child support)
* Habitually writing bad checks
* Indebtedness 
* Failing to maintain wall locker to standard
* Unprepared for wall locker inspection


* Failing to be in the proper uniform for remedial training
* Failing push-up event in a diagnostic Army Physical Fitness Test
* Disrespecting noncommissioned officers
* Failing to get a hair cut
* Failing to report on numerous occasions
* Disrespecting his team leader
* Delivering false reports
* Debt avoidance counseling
* Remedial training
* Failing to pay back taxes to the Internal Revenue Service (IRS)

4.  His record contains a statement from his squad leader, dated 3 March 1990, that states the chain of command feels the applicant should be barred from reenlistment and considered for administrative separation because:

	a.  he is considered a subpar Soldier and an administrative burden to the chain of command.  His performance in the past has exhibited a failure to follow instructions, disobeying lawful orders, and an inability to maintain military standards;

	b.  his most serious offenses include a failure to comply with court orders to pay child support, chronic check bouncing, indebtedness, owing back taxes to the IRS, and purchasing a camera for $1,074.60 and failing to make payments on time;

	c.  the chain of command has counseled him, set up payment plans, attempted to help him get loans that were refused, and enrolled him in budget and check writing classes which he passed; and

	d.  the chain of command feels strongly that this is not the type of conduct desired by the U.S. Army and he should be returned to civilian life.

5.  His record shows he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 22 June 1990 for writing a bad check and failing to maintain sufficient funds in his bank account.

6.  His record contains a memorandum for record from his company commander, dated 10 July 1990.  This memorandum states:

	a.  he has repeatedly written bad checks with insufficient funds to cover them, failed to pay creditors on time or fully, and continues to incur debt and purchase items with no money to back the purchases.  In the past 3 months he has written 14 overdrafts and has not made any payments to correct the deficiencies without being escorted by his squad leader;

	b.  during an Article 15 hearing for bad checks, he stated he understood what he had done and he had no excuse.  All of these checks were written after he passed the check writing and budget classes;

	c.  in addition to his recurring financial problems, he is currently in debt for approximately $1,500.00 to a camera company and he has not made any recent payments;

	d.  his duty performance is marginal at best, and he is close to being overweight and presents an overweight appearance.  This trend has continued since March of 1989.  He has on more than one occasion been disrespectful to his squad leader and platoon sergeant, and he had failed to report on several occasions; and 

	e.  based on this Soldier's continued misconduct and failure to respond to repeated counseling, separation in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, was recommended.

7.  His record contains a Standard Form (SF) 93 (Report of Medical History) and a DA Form 3822-R (Report of Mental Status Evaluation).  These forms show he received pre-separation medical and mental evaluations on 28-29 June 1990 and he was found fit to participate in separation proceedings.

8.  On 20 July 1990, he was notified by his immediate commander of the intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14, for the commission of a serious offense (a history of writing bad checks).  He acknowledged receipt of notification on that same day.

9.  On 6 August 1990, he acknowledged he had been advised by his counsel of the basis for the contemplated separation action under Army Regulation
635-200, chapter 14, and its effects; of the rights available to him, and of the effect of any action taken by him to waive his rights.  He chose to submit a statement in his own behalf; however, his statement is not available for review. 


10.  On 24 August 1990, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, and directed the issuance of a general discharge.  On 31 August 1990, he was discharged accordingly.  His DD Form 214 confirms he was discharged by reason of misconduct – commission of a serious offense.  His DD Form 214 shows he completed 1 year of foreign service and 3 years and 12 days of creditable active service.  He was discharged in the rank/grade of private first class (PFC)/ E-3.

11.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of the DD Form 214 he was issued at the time does not show the "Korean Occupation Medal," Air Assault Badge, or the 3-year service stripe.

12.  Permanent Orders 109-059, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 8 June 1989, awarded him the Air Assault Badge for successful completion of the standard Air Assault Course during the period 15 May through 1 June 1989.

13.  Item 5 (Foreign Service) of his DA Form 2-1 (Personnel Qualification Record) shows he completed a normal tour in Korea from 9 December 1987 through 8 December 1988.

14.  He provided a VA Form 21-4138 and two letters of reference/support as evidence.  The documents essentially state the applicant maintains a positive balance in his bank account and he is a responsible employee and productive member of society.

15.  Army Regulation 635-200 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 a serious offense, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of the regulation.


16.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 600-8-22 (Military Awards) states the Army of Occupation Medal is awarded for service of 30 consecutive days at a normal post of duty in a qualifying location.  Personnel at a qualifying location as an inspector, courier, escort, temporary, or detached duty are precluded from eligibility.  For award of the Army of Occupation Medal with Japan Clasp for the Army of Occupation of Korea, the service must have occurred between 3 September 1945 and 29 June 1949, inclusive.  Service between 3 September 1945 and 2 March 1946 is qualifying only if the Asiatic-Pacific Campaign Medal was earned prior to 3 September 1945.

18.  Army Regulation 600-8-22 states the Korea Defense Service Medal is authorized for award to members of the Armed Forces of the United States who have served on active duty in support of the defense of the Republic of Korea.  The period of eligibility is 28 July 1954 to a date to be determined by the Secretary of Defense.

19.  Army Regulation 670-1 (Uniforms and Insignia) governs the requirements for the service stripes.  It states a gold-colored embroidered diagonal stripe is authorized for wear centered on the outside bottom half of the left sleeve on the Army uniform coat.  A single service stripe represents a 3-year period of honorable service.

20.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states that awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22 will be entered on the DD Form 214.  Each entry will be verified by the Soldier’s records.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for upgrade of his general discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support this request.


2.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The evidence of record shows he consulted with counsel and he was advised of the basis for the separation action.

3.  Based on his record of misconduct, including the commission of a serious offense, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

4.  Permanent orders awarded him the Air Assault Badge for completing the Air Assault Course at Fort Campbell.  Therefore, his DD Form 214 should be corrected to show this award.

5.  The applicant did not serve during a qualifying period of service for entitlement to the Army of Occupation Medal with Japan Clasp for the Army of Occupation of Korea.  Therefore, there is no basis for granting this portion of his request.

6.  However, evidence shows he served in Korea during a qualifying period of service for the Korea Defense Service Medal.  Therefore, his DD Form 214 should be corrected to show this award.

7.  There is no effective relief for the addition of a service stripe to his DD Form 214 as it is an item of clothing and not governed by Army Regulation 600-8-22.  Therefore, there is no basis for granting this portion of his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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.  As a result, the Board recommends that all 


Department of the Army records of the individual concerned be corrected by adding to item 13 of his DD Form 214 the: 

* Korea Defense Service Medal
* Air Assault Badge

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 general discharge to an honorable discharge
* awarding him the Army of Occupational Medal with Japan Clasp
* adding a service stripe to his DD Form 214



      ____________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)                                         AR20110017134



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ABCMR Record of Proceedings (cont)                                         AR20110017134



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