RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 26 October 2005 DOCKET NUMBER: AR20050001246 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. Luis Almodova Senior Analyst The following members, a quorum, were present: Mr. James E. Vick Chairperson Mr. Conrad V. Meyer Member Ms. Linda M. Barker Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his discharge, under other than honorable conditions, be upgraded to honorable. 2. The applicant states, in effect, that the type of discharge received does not justify being discharged under other than honorable conditions. He states that he has been a good citizen since being discharged. There was only one offense and then he was given an under other than honorable conditions discharge. The punishment received was just too harsh for the offense. He adds that he was generally a good Soldier while in service. 3. The applicant provides a collection of seven documents related to his service in support of his request. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: The applicant's request included an additional request to be represented by the American Legion as counsel. Counsel was notified on 12 September 2005 of this and was given 30 days in which to review the applicant's request and all available service records. As of 17 October 2005, counsel had not reviewed these records and had provided no input in behalf of the applicant. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice that occurred on 1 December 1988. The application submitted in this case is dated 19 January 2005. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant enlisted in the US Army Reserve on 18 June 1980. On 8 July 1980, the applicant enlisted in the Regular Army for a period of 3 years. The applicant successfully completed basic combat training at Fort McClellan, Alabama, and his advanced individual training at Fort Lee, Virginia. On completion of his advanced training, he was awarded the military occupational specialty 76D, Equipment Records and Parts Specialist. 4. On 27 January 1983, the applicant reenlisted, in the pay grade of E-4, for 4 years, for an overseas assignment (Germany). He completed his tour in Germany and was assigned to Fort Lewis, Washington, for duty as a Military Policeman. 5. On 8 September 1983, the applicant was reassigned to Germany. He was assigned to Headquarters and Headquarters Detachment, 72nd Signal Battalion. 6. On 6 June 1986, the applicant was promoted to the rank and pay grade, Sergeant, E-5. 7. On 8 July 1986, the applicant was awarded the Good Conduct Medal by Permanent Orders 97-15, which were published by the 69th Personnel Service Company. 8. On 7 September 1987, the applicant was reassigned to Fort Hood, Texas, at the completion of his extended overseas tour. 9. On 20 June 1988, the applicant received non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for stealing a bottle of Halston cologne, the property of the main exchange, of a value of $13.25 on 24 May 1988, and for stealing a bottle of Perry Ellis cologne, the property of the main exchange, of a value of $26.50 on 24 May 1988. The imposed punishment was a reduction to pay grade E-4, forfeiture of $519.00 pay per month for two months, suspended for 180 days, and to perform extra duties for 45 days. The applicant appealed the punishment. The applicant's appeal was denied. The officer who considered his appeal determined that the punishment imposed was neither disproportionate nor unjust for the offense committed. 10. Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows that he was reduced in pay grade from E-5 to E-4 on 20 June 1988. Orders 226-125, Headquarters, 1st Cavalry Division, dated 30 November 1988, submitted by the applicant, show he was reduced from pay grade E-4 to E-1 on 15 November 1988. 11. The discharge "packet" that was prepared for the applicant's separation from the Army is not available in his service personnel records; therefore, the facts and circumstances concerning events that led to his discharge from the Army are not known. 12. The applicant was discharged in the rank and pay grade of Private, E-1, on 1 December 1988, under the provisions of Army Regulation (AR) 635-200, Chapter 10. The Separation Program Designator Code (SPD) KFS (For the good of the service - in lieu of trial by court-martial) was applied to the applicant's DD Form 214. The applicant's service was characterized as, "Under Other than Honorable Conditions." 13. On the date of his discharge, the applicant had completed 8 years, 4 months, and 24 days, total active military service. 14. Item 26 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized), of the applicant's DD Form 214, Certificate of Release or Discharge from Active Duty, shows that he was awarded the Good Conduct Medal, with 2 bronze loops; the Army Service Ribbon; the Overseas Service Ribbon, with numeral one; the Expert Marksmanship Qualification Badge, with Rifle and Pistol Bars; and the Sharpshooter Marksmanship Qualification Badge, with Hand Grenade Bar. The record contains no documentary evidence of acts of valor or achievement which warrant special recognition. 15. There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 16. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 17. AR 635-200, paragraph 3-7, 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. Whenever there is doubt, it is to be resolved in favor of the individual. 18. AR 635-200, paragraph 3-7, provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. 19. The applicant states that he has been a good citizen since being discharged and that he was generally a good Soldier while he served. DISCUSSION AND CONCLUSIONS: 1. The applicant’s record is void of the facts and circumstances concerning the events that led to his discharge from the Army. The applicant’s record contains a properly constituted DD Form 214, which was authenticated by the applicant. This document identifies the reason and characterization of the discharge. Government regularity in the discharge process is presumed. 2. The evidence of record shows the applicant was discharged under the provisions of AR 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial. In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ. 3. In the absence of information to the contrary, it is believed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and it is believed that the applicant was aware of that prior to requesting discharge. It is believed that the reason for discharge and the characterization of service were both proper and equitable. 4. The applicant’s entire record of service was reviewed. The record contains no documentary evidence of acts of valor or achievement which would warrant special recognition and an upgrade of his under other than honorable conditions discharge. 5. The quality of the applicant’s service was considered. However, this service was determined not to be sufficiently meritorious to warrant an upgrade of the characterization of his service. The applicant alleges that there was only one offense and that his under other than honorable conditions discharge was too harsh a punishment. 6. Contrary to the above allegation, the evidence shows that the applicant received non-judicial punishment for stealing items from the post exchange while he was serving in the rank and pay grade of a noncommissioned officer. This act severely diminished the overall quality of the service that should be expected of a noncommissioned officer. The evidence also shows that other violations of law were committed, for which charges were preferred against him, for which a punitive discharge could have been given, which eventually led to his discharge from the Army. 7. The applicant, in his application to the Board stated that he has been a good citizen since being discharged; however, he did not submit any evidence of his accomplishments or service to the community, his church, or to other bodies, where he has made a positive contribution, to corroborate his statement. 8. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 9. In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his under other than honorable conditions discharge. 10. Records show the applicant should have discovered the alleged error or injustice now under consideration on 1 December 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 November 1991. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __JEV___ _CVM___ __LMB__ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. _____James E. Vick_______ CHAIRPERSON INDEX CASE ID AR20050001246 SUFFIX RECON DATE BOARDED TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19881201 DISCHARGE AUTHORITY AR 635-200, chapter 10 DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 360 144.0000 2. 394 144.0133 3. 405 144.0144 4. 5. 6.