PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 1 July 2003
         DOCKET NUMBER: AR2003088057


         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Ted S. Kanamine		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen T. Fletcher		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he receive his DD Form 214 (Certificate of Discharge or Release from Active Duty), that his discharge be upgraded, and that he be awarded the Armed Forces Expeditionary Medal for his service in Panama during Operation Just Cause.

3. The applicant states that he never received his DD Form 214. At his court-martial, the Criminal Investigation Command (CID) stated they could find no wrongdoing on his part. His commander also stated that he was an outstanding Ranger and could not have committed the offenses with which he was charged.

4. The applicant’s military records show that, after having had prior service in the U. S. Marine Corps, he enlisted in the Regular Army on 26 August 1986 for training as a unit supply specialist. He was assigned to Headquarters and Headquarters Company, 2d Battalion, 75th Ranger Regiment, Fort Lewis, WA on 22 May 1987 as a supply specialist. He was honorably discharged on 30 March 1989 for the purpose of immediately reenlisting on 31 March 1989 for 2 years. He was promoted to Sergeant, E-5 on 1 July 1989.

5. Testimony at the applicant's court-martial indicated the applicant had been deployed to Panama during Operation Just Cause. Records at the Defense Finance and Accounting Service confirmed that he had been authorized hostile fire pay during the month of December 1989.

6. During Article 32(b) investigation proceedings prior to trial, a CID special agent testified that he investigated the alleged selling of night vision goggles by the applicant to another soldier. That soldier in turn sold the goggles to another soldier whose spouse returned the goggles to CID. The agent testified that the first soldier confessed that the applicant sold the goggles to him. The Final CID Report of Investigation noted in the synopsis that investigation disclosed that the applicant stole one pair of night vision goggles and sold them to another soldier.

7. On 28 November 1990, the applicant was convicted by a general court-martial of dishonorable failure to pay a just debt (to a lower ranking soldier); making false official statements; dereliction in the performance of duties; wrongful sale of night vision goggles with carrying case, property of the United States, of a value of more than $100.00; and larceny of night vision goggles with carrying case, property of the United States, of a value of more than $100.00. He was sentenced to be reduced to pay grade E-1 and to be discharged with a bad conduct discharge.

8. The CID special agent testified at the applicant's trial only insofar as to his investigation procedures. He did not testify one way or the other whether he believed the applicant committed the offenses.

9. The applicant's company commander testified at his trial. She testified that while she was still the Group S-4 the previous company commander had moved the applicant from the supply room to duties as the training noncommissioned officer. She testified this was done because she (the former commander) was concerned when the charges came up against the applicant. The current commander testified that she would not have done that as the applicant was doing a good job and his replacement did not do such a good job. She testified that she thought the applicant did a very good job while he was the supply sergeant although he was discouraged by the fact charges were brought against him.

10. After the applicant was found guilty, at the sentencing hearing, the applicant's company commander testified that the trial findings and her observation of the applicant [during the trial] did not change her opinion about him. She would take him back and have him work for her and that she felt he had rehabilitative potential. She stated she would trust him in her supply room, he did a fine job there before, and all of "this" happened before she ever saw him.

11. On or about 27 March 1991, the applicant was placed on involuntary excess leave pending appellate review.

12. On 10 June 1991, the U. S. Army Court of Military Review affirmed the findings of guilty and the sentence.

13. Headquarters, I Corps and Fort Lewis General Court-Martial Order Number 24 dated 11 March 1992 directed execution of the applicant's sentence to a bad conduct discharge.

14. The applicant's DD Form 214 apparently was never prepared. In 1997, a request for a copy of his DD Form 214 was directed to the U. S. Army Reserve Personnel Center (ARPERCEN). ARPERCEN in turn forwarded his records to the Fort Lewis Staff Judge Advocate's office for further forwarding to the Fort Lewis personnel office for preparation of the DD Form 214. If his DD Form 214 was prepared, a copy was never placed in his records. A check with the Fort Lewis transition point and Trial Defense Service revealed that they do not have a copy of his files or his DD Form 214 and do not normally retain such files for any length of time.

15. Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’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. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

16. Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

17. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, for award of the Armed Forces Expeditionary Medal for qualifying service after 1 July 1958 in U.S. military operations, U.S. operations in direct support of the United Nations, and U.S. operations of assistance for friendly foreign nations. Qualifying service for this award includes the requirements to be a bona fide member in a unit and to be engaged in the operation or serve in the area of operations for 30 days; be engaged in direct support of the operation for 30 consecutive or 60 nonconsecutive days provided support involves entering the area of operations; be engaged in combat; or be recommended for, or attached to a unit recommended for, award of the medal if the above criteria have not been met. Operation Just Cause is a designated military operation for the period 20 December 1989 to 31 January 1990.

18. Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service. In the version currently in effect, paragraph 2-4h(18)(c) states that, for enlisted soldiers with more than one enlistment period during the time covered by this DD Form 214, “IMMEDIATE REENLISTMENTS THIS PERIOD” (specify dates) will be entered. However, for soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except “Honorable,” then “Continuous Honorable Active Service From” (first day of service for which DD Form 214 was not issued) Until” (date before commencement of current enlistment) will be entered. Then, the specific periods of reenlistments as prescribed above will be entered.

CONCLUSIONS:

1. Contrary to the applicant's contentions, the evidence of record shows CID did not state that they could find no wrong doing on his part. In addition, while his company commander testified that the applicant was an outstanding soldier, she did not testify that he could not commit the offenses with which he was charged. She only testified that she would be willing to have him work for her despite the findings of the court-martial.

2. Trial by court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations. The discharge appropriately characterizes the misconduct for which he was convicted. As the applicant's contentions relate to evidentiary matters which were finally and conclusively adjudicated in the court-martial appellate process, they furnish no basis for recharacterization of the discharge.

3. The Board concludes there is sufficient evidence of record to show the applicant served in Panama during Operation Just Cause and presumes he met the eligibility criteria for award of the Armed Forces Expeditionary Medal.

4. As it appears Government error caused the applicant's DD Form 214 not to be prepared, the Board concludes it would be appropriate at this time to prepare one for his service in the Army under current preparation policy. Specifically, an entry should be made in item 18 to indicate the applicant's prior honorable Army service. The evidence of record appears to show the applicant was discharged effective 11 March 1992.

5. In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by awarding the applicant the Armed Forces Expeditionary Medal for service during Operation Just Cause.

2. That a DD Form 214 be prepared to record the applicant's service in the Army with a discharge date, as a result of his sentence to a bad conduct discharge, of 11 March 1992.

3. That so much of the application as pertains to an upgrade of his discharge be denied.

BOARD VOTE:

__tsk___ __mhm___ __kyf___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _Ted S. Kanamine
                  CHAIRPERSON

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INDEX

CASE ID	AR2003088057
SUFFIX
RECON
DATE BOARDED	20030701
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	Mr. Schneider
ISSUES 1.	105.01
2.
3.
4.
5.
6.