IN THE CASE OF:	  

		BOARD DATE:  2 August 2012

		DOCKET NUMBER:  AR20120002024 


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, in effect:

	a.  his general discharge be upgraded; and

	b.  item 12f (Foreign Service) of his DD Form 24 (Certificate of Release or Discharge from Active Duty) be corrected to show he served 13 months instead of 6 days. 

2.  The applicant states:

* he served 13 months overseas
* while overseas he was a model Soldier with no disciplinary actions
* when he changed his duty station to Fort Polk, Louisiana, he was out of the Army in 10 months
* he received 3 Article 15s in 3 months
* his first sergeant was a racist
* his discharge hinders his life and employment opportunities 

3.  The applicant provides 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 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 Amy on 10 June 1982 for a period of 
3 years.  He completed his training and was awarded military occupational specialty 94B (food service specialist).  He arrived in Korea on 27 October 1982.

3.  Records show on 4 February 1983, nonjudicial punishment (NJP) was imposed against the applicant.  No other details are available.

4.  He departed Korea on 28 October 1983 for assignment at Fort Polk, Louisiana.

5.  Between 2 March and 14 June 1984, NJP was imposed against the applicant on 3 occasions for:

* failing to go at the time prescribed to his appointed place of duty (two specifications)
* leaving his appointed place of duty without authority
* disobeying a lawful order 

6.  On 28 June 1984, he was notified of his pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unsatisfactory performance.  The reasons for the proposed action were his:

* numerous displays of a poor attitude and being disrespectful towards superiors
* poor job performance 
* NJPs in May and June 1984

7.  On 3 July 1984, he consulted with counsel and acknowledged notification of his pending separation action.  He also acknowledged he understood that he might encounter substantial prejudice in civilian life if a general discharge was issued.  He elected not to submit a statement in his own behalf.  

8.  On 24 July 1984, the separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, chapter 13 and directed the applicant be furnished a general discharge.

9.  He was discharged on 3 August 1984 under the provisions of Army Regulation 635-200, chapter 13, for unsatisfactory performance with a general discharge.  He had served 2 years, 1 month, and 24 days of creditable active service.  Item 12f of his DD Form 214 shows he had 6 days of foreign service.

10.  Item 5 (Oversea Service) of his DA Form 2-1 (Personnel Qualification Record) shows he served in Korea from 27 October 1982 through 28 October 1983, a total of 1 year and 2 days.

11.  On 27 January 1997, the Army Discharge Review Board denied his request for an honorable discharge.

12.  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.

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

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends he served 13 months overseas, the available evidence shows he served in Korea 1 year and 2 days.  Therefore, the entry in item 5 of his DA Form 2-1 which shows he served in Korea from 27 October 1982 to 28 October 1983 is accepted as sufficient evidence on which to base amending item 12f of his DD Form 214.  Therefore, item 12f should be corrected to show he served 1 year and 2 days of foreign service.
2.  The applicant contends he was a model Soldier with no disciplinary actions while serving in Korea.  However, the evidence shows he received 1 NJP in February 1983 during his assignment in Korea. 

3.  He contends his first sergeant was racist.  However, there is no evidence of record which shows the applicant was a victim of racial discrimination.

4.  He contends his discharge hinders his employment opportunities.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

5.  His record of service included four NJPs.  As a result, his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.

6.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

7.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 

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 deleting the entry in item 12f of his DD Form 214 and replacing it with the entry "01  00  02."

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 honorable or amending item 12f of his DD Form 214 to show he had 13 months of overseas service.  



      __________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)                                         AR20120002024



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ABCMR Record of Proceedings (cont)                                         AR20120002024



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