IN THE CASE OF:	  

		BOARD DATE:	    4 December 2012

		DOCKET NUMBER:  AR20120010653 


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 general, under honorable conditions, discharge be upgraded to honorable.

2.  The applicant states he was unjustly discharged from the Army for defending himself when assaulted by Korean nationals while off duty with a few of his buddies in Pusan, Korea.  They were outnumbered and tried to avoid a confrontation.  A fight ensued and they were arrested by the Korean police.  He was not released until his father sent money as a settlement.  Shortly after his release, the Army processed him for discharge.  His Army lawyer told him to accept a general discharge because it could get upgraded in 6 months.  He truly believes he was unjustly discharged.  He was raised to stand up for himself and to believe a man can only be pushed so far.  The Koreans who instigated this fight had followed them from one establishment to another and were looking for trouble.  He tried to avoid it.  When it became obvious that they were not going to leave them alone, he defended himself.  Afterwards, he felt as though the chain of command just wanted to wash their hands of him.  They were more concerned about an international incident than they were about his safety and the future safety of American servicemen while off duty in Korea.  What happened to him could have happened to anyone.  In his case, he was not willing to be assaulted without defending himself.

3.  The applicant provides copies of a General Release - Private Statement, dated 13 April 1979.


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.  On 14 September 1976, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 51R (Electrician).

3.  On 8 June 1978, the applicant departed Fort Benning, Georgia for duty in the Republic of Korea.  He was subsequently assigned for duty as an electrician with the 802nd Engineer Battalion, 2nd Engineer Group.

4.  On 6 April 1979, the applicant's commander recommended that he be barred to reenlistment based on the following:

	a.  Nonjudicial punishments:

* 21 December 1978: Disrespect to a noncommissioned officer (NCO)
* 5 February 1979: Disobeying a lawful order, disrespect to an NCO 
* 15 March 1979: Failure to obey a lawful order and being absent without leave

	b.  The commander stated that the applicant had been involved in numerous incidents of misconduct during the previous 4 months.  He had been counseled repeatedly, but his conduct did not improve.  While his duty performance was satisfactory, he continued to experience difficulties in adhering to regulations and orders from his superiors.  He was unsuitable for military service.

5.  The applicant acknowledged the commander's recommendation concerning his bar to reenlistment and elected to not submit a statement in his own behalf.


6.  On 17 April 1979, the applicant's commander notified the applicant of his intent to separate him under the provisions of Army Regulation 635-200, paragraph 5-31 because of his poor attitude, lack of self-discipline, and inability to accept instructions and directions, all resulting in his being involved in numerous acts of misconduct.

7.  The applicant acknowledged this notification and voluntarily consented to be discharged.  He elected to not submit a statement on his own behalf.  He further indicated that he understood that if he was issued a General Discharge Certificate he could expect to encounter substantial prejudice in civilian life and acknowledged that he was provided the opportunity to consult with an officer of the Judge Advocate General’s Corps.

8.  On 3 May 1979, the appropriate authority approved the recommendation to bar the applicant to reenlistment.

9.  On 8 May 1979, the applicant’s commander submitted his recommendation to separate the applicant from the service under the provisions of Army Regulation 635-200, paragraph 5-31.  In support of the recommendation, the commander cited the applicant's three NJPs and his recent bar to reenlistment.

10.  On 9 May 1979, the appropriate authority approved the recommendation and directed that he be issued a General Discharge Certificate.

11.  Accordingly, on 23 May 1979, the applicant was discharged under honorable conditions and issued a General Discharge Certificate.  He completed 2 years, 
8 months, and 10 days of creditable active duty service.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Paragraph 5-31 of that regulation provided the authorization for separation under the Expeditious Discharge Program, for the convenience of the government.  A general discharge under honorable conditions was normally issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general discharge should be upgraded to honorable because he was unjustly discharged from the Army for defending himself when assaulted by Korean nationals.

2.  The applicant's contention that he was discharged based on a single incident involving Korean nationals assaulting him is not supported by any evidence of record.  The evidence of record does show he had received several NJPs and was denied reenlistment.

3.  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.

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

5.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

6.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120010653





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120010653



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1