IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130001877 


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 under honorable conditions and credit for his overseas service.

2.  The applicant states he served his country and should receive credit for his overseas service.

3.  The applicant provides no additional evidence.

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's records show he enlisted in the Regular Army on 13 April 1984 and he held military occupational specialty 94B (Food Service Specialist).

3.  Subsequent to completion of initial entry training, he was assigned to Fort Riley, KS, initially with Company D, 701st Maintenance Company, and later to Company C, 4th Support Battalion, in May 1985.

4.  He was frequently counseled by several members of his chain of command for various infractions, including:

* spousal abuse
* multiple instances of failing to report to duty
* being late to duty
* having dishonored checks and failing to pay debts
* demonstrating poor attitude, lack of motivation, poor appearance, and unsatisfactory performance

5.  On 4 March 1986, he was absent without leave (AWOL) from his unit, but he returned on 7 March 1986.

6.  On 6 April 1986, he was again AWOL from his unit, but he returned on 7 April 1986.

7.  On 26 May 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being AWOL from 4 to 7 March 1986 and from 6 to 7 April 1986.

8.  On 24 July 1986, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him in accordance with chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of unsatisfactory performance.  Specifically, the immediate commander cited the applicant's repeated failure to be at the appointed place/time and lack of response to counseling, failure to follow instructions, lack of motivation, and inability to conform to military standards.

9.  On 24 July 1986, the applicant acknowledged receipt of the commander's intent to separate him and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unsatisfactory performance, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures/rights available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.  He further acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and he might be ineligible for many or all of the benefits as a veteran under both Federal and State laws.

10.  On 24 July 1986, the applicant's immediate commander initiated separation action against him in accordance with Army Regulation 635-200 by reason of unsatisfactory performance.

11.  On 25 July 1986, the applicant's intermediate commander recommended approval of the proposed elimination action by reason of unsatisfactory performance.

12.  On 31 July 1986, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-200 by reason of unsatisfactory performance and directed the issuance of a General Discharge Certificate.  Accordingly, the applicant was discharged on 14 August 1986.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 3 months, and 28 days creditable military service.  Item 12f (Foreign Service) of his DD Form 214 does not show any foreign service.

13.  There are no temporary duty orders, permanent change of station orders, or other documents confirming the applicant served overseas during his military service.

14.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 13 contains the policy and outlines the procedures for separating individuals for unsatisfactory performance and provides, in part, that commanders will separate a member under this chapter when the member will not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier in the commander's judgment.  A general or honorable discharge was considered appropriate.

	b.  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.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  It is important that information entered on the form should be complete and accurate.  It stated for item 12f, enter the total amount of foreign service completed during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant's duty performance was tarnished by multiple negative counselings and two periods of AWOL.  Accordingly, his chain of command initiated separation action against him.

2.  The evidence further shows his separation processing was accomplished in compliance with applicable regulations and there is no evidence of procedural errors that would have jeopardized his rights.  His general discharge is commensurate with his overall record of military service.

3.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

4.  There is no evidence of record and the applicant did not provide any evidence that supports his contention that he served overseas during his period of active service.  His service records do not contain a manifest, deployment orders, temporary duty orders, permanent change of station orders, or an award certificate confirming his service overseas.  In view of the foregoing, there is an insufficient evidentiary basis to show any overseas service.

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 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)                                         AR20130001877



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ABCMR Record of Proceedings (cont)                                         AR20130001877



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