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.                      |                                        |


-----------------------
[pic]