RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:       5 January 2006
      DOCKET NUMBER:  AR20050002488


      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. William D. Powers             |     |Chairperson          |
|     |Mr. Thomas M. Ray                 |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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, that he be given a
disability retirement for preexisting conditions or that he be placed on
the Retired Reserve List, and that he be issued a special retirement
certificate award.

2.  The applicant states, in effect, that he is asking the Board to review
his record for consideration in two possible categories of eligibility.
First, he wants to be considered as an Army Reservist with fifteen years of
honorable creditable service for a special retirement under physical/mental
disability preexisting conditions and, secondly he asks the Board for
consideration for an active duty, AGR (Active Guard Reserve) retirement
under service-connected disability conditions for member with over eight
years of creditable honorable service.

3.  The applicant provides a collection of fifty-seven pages of documents
he feels are related to his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Applicant's counsel requests that the Board consider all mitigating and
extenuating circumstances surrounding this case and review all applicable
laws in support of the applicant.  Counsel states that although the
applicant's conduct constituted military misconduct for which he was
discharged, the applicant avers that the punishment he received was too
harsh.  Counsel points out that the applicant submits documents from the
Army Discharge Review Board's Case Historical Record Collection of similar
cases, or worse, that received a general discharge or a discharge under
honorable conditions.

2.  Counsel has asked the Board to heavily consider the applicant's mental
and physical conditions when deciding this case and in particular the
ratings awarded by the Department of Veterans' Affairs for his service-
connected disabilities.

3.  Counsel finally asks that the Board extensively review the applicant's
documented file with all supportive evidence, resolve any and all
reasonable doubt in favor of the applicant, and grant him the benefits he
seeks in this case.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors, which
occurred on
18 May 2001.  The application submitted in this case is dated 2 February
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 to excuse failure to file within
the 3-year statute of limitations 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 (USAR) on 14 May 1983.
On 5 August 1983, he was ordered to active duty for training.  On 11
November 1983, he completed his training and was returned to his USAR unit.
 On completion of his training, he was awarded the military occupational
specialty 12A, Pioneer.  The applicant continued to serve through several
enlistments as a member of the USAR Ready Reserve.  On 28 September 1990,
he was transferred to the USAR AGR Program.

4.  The applicant entered the USAR in the rank and pay grade, Private, E-1
and made rank as follows:  Private, E-2, on 9 December 1983; Private First
Class,
E-3, on 13 May 1984; Specialist, E-4, on 17 December 1984; Sergeant, E-5,
on 24 August 1986; Staff Sergeant, E-6, on 1 August 1989; and Sergeant
First Class, E-7, on 1 August 1993.

5.  On 11 November 1983, as indicated in paragraph one above, when the
applicant completed his training, he was awarded the MOS, 12A (Pioneer).
On 11 September 1989, the applicant was awarded a secondary and an
additional MOS of 71L (Administration Specialist) and 75H (Personnel
Service Specialist).  On 17 December 1991, the MOS 75H was redesignated his
primary MOS and 71L was made his additional MOS.  The MOS 12B became his
secondary MOS.

6.  All the facts and circumstances pertaining to the applicant's discharge
are not on file in the available records; however, the record does contain
a properly completed DD Form 214 (Certificate of Release or Discharge from
Active Duty), that shows the narrative reason for the applicant's
separation, the character of his service, and the authority for the type of
separation the applicant received.

7.  On 10 January 2000, the applicant was notified by his commander, a
military police captain, that he was initiating action to separate him
for his serious misconduct, under the provisions of Army Regulation (AR)
635-200 (Personnel Separations – Enlisted Personnel), Chapter 14,
paragraph 14-12c.  The reason the commander cited was that between
February 1999 and August 1999, the applicant had stolen Government
property worth approximately $4,000.  The applicant, the commander added,
had caused a civil disturbance on 10 October 1999, by participating in a
verbal altercation at his residence.  He and his girlfriend were having a
verbal altercation that was so disruptive that the police were called to
his residence.  It was subsequently discovered that the applicant had
wrongfully obtained the government quarters for himself and his
girlfriend and her two children under false pretenses, by making false
official statements and, had wrongfully cohabited with his girlfriend in
these Government quarters between 12 August 1999 and 6 November 1999.

8.  In paragraph ten of the above letter of notification, the applicant was
notified that he was required to undergo a complete medical examination and
a mental status evaluation in accordance with AR 40-501 (Standards of
Medical Fitness).

9.  The applicant was given a mental status evaluation at the US Air Force
Medical Center, Scott Air Force Base, Illinois, on 13 January 2000.  The
results of the examination were recorded on an automated SF (Standard Form)
600.  At the time the applicant reported for his evaluation, it was
recorded that he arrived without records, forms, and after evaluation, it
was determined that he was in need of follow up examination.  A comment was
made that the applicant would separate in the next few months and, that he
had suicidal thoughts in the past few months, but denied any suicidal
thoughts that day.  The applicant reported that he was under lots of stress
because he was divorcing his wife and she had a DUI (driving under the
influence) and an automobile accident fairly recently with prolonged
hospitalization.

10.  There is no evidence, and the applicant provided none, to show that he
had been referred to the Army's physical disability system for evaluation
for a possible disability retirement.

11.  The evidence shows that on 29 June 2000, the applicant was charged
with three specifications of stealing military property of the U.S.
Government, making false official statements, committing fraud against the
United States, and forgery.

12.  On about 29 June 2000, the applicant requested discharge, in lieu of
trial by court-martial, under the provisions of Chapter 10, AR 635-200.

13.  The evidence also shows that on 20 April 2001, the separation
authority approved the applicant's request for discharge and he was given
an under other than honorable conditions discharge, in lieu of trial by
court-martial, on 18 May 2001.

14.  On the date of the applicant's discharge, he had completed 10 years,
7 months, and 10 days net service during the period covered by the DD Form
214; 3 months and 21 days prior active service; and 7 years and 23 days
prior inactive service.  The applicant had two periods of lost time under
Title 10, US Code 972 during the period, for a total of 11 days.  Item 21
(Time Lost), of the applicant's DA Form 2-1, shows the applicant was
confined in the hands of civil authorities on the day of his discharge, 18
May 2001, and had been confined since 29 October 2000.  This period of lost
time was not transposed to the applicant's DD Form 214 on the day of his
discharge due to an administrative error.

15.  In a Memorandum for the Commander, U.S. Army Maneuver Support Center
and Fort Leonard Wood, Fort Leonard Wood, Missouri, Subject: Request for
Discharge in Lieu of Trial by Court Martial, dated 20 April 2001, the Staff
Judge Advocate reported to the commander, in response to "Paragraph 3.l.
Pretrial Restraint: None (AWOL [absent without leave] terminated by
civilian confinement, Soldier remains in civilian confinement)."

16.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons
Awarded or Authorized), of the applicant's DD Form 214, shows he was
awarded:  the Good Conduct Medal (2nd Award); the Army Service Ribbon; the
Army Commendation Medal; the Army Achievement Medal; the Army Reserve
Components Achievement Medal; the National Defense Service Medal; the Armed
Forces Reserve Medal; the Noncommissioned Officer's Professional
Development Ribbon, with Numeral 2; and the Driver and Mechanic Badge.

17.  The available DA Form 2, Personnel Qualification Record, Part I, dated
15 March 1999, in Item 6 and 7 shows the applicant had a PULHES of 111111
and a Physical Category Code of A.

18.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge within its 15-year statute of limitations on 22
March 2004.  On 14 January 2005, the applicant was notified that after
careful review of his application, military records, and all other
available evidence in the case, the ADRB had determined that he was
properly and equitably discharged.  Accordingly, his request for a change
in the character and/or reason for the discharge were denied.

19.  On 17 June 2004, the Department of Veterans Affairs (VA) made a
determination on a claim that was submitted to them by the applicant.  In a
VA Rating Decision, the VA determined that the applicant had a 60% overall
or combined rating that was related to his military service and so, service
connection was granted.  The applicant was rated at 30% for depression,
20% for osteoarthritis, 20% for degenerative joint disease of the right
knee, and keratosis of the right eye.  The rating decision show that the
applicant's original disability claim was filed on 12 June 2000, a date
after he was notified he was being recommended for discharge from the Army
under the provisions of AR 635-200, Chapter 14.

20.  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.

21.  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.

22.  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.

23.  AR 635-200, Chapter 1, Section VI, Paragraph 1-32, states, in
pertinent part that medical examinations are require for Soldiers being
processed for separation under chapters 5, 8, 9, 11, 12, 13, 14, 15, and
18.  Medical examination incident to separation under other provisions of
the regulation is not required but will be administered if requested in
writing by the Soldier.  Additionally, mental status evaluations are
required for Soldiers being processed for separation under chapters 13, 14,
or 15.  A mental status evaluation is also required when a Soldier being
processed for discharge under chapter 10 requests a medical examination.
The mental status evaluation will be documented in the Soldier's medical
records on SF (Standard Form) 600, Health Record-Chronological Record of
Medical Care.

24.  AR 40-501, Chapter 7, physical profiling, provides that the basic
purpose of the physical profile serial system is to provide an index to
the overall functional capacity of an individual and is used to assist
the unit commander and personnel officer in their determination of what
duty assignments the individual is capable of performing, and if
reclassification action is warranted.  Four numerical designations (1-4)
are used to reflect different levels of functional capacity in six
factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1
under all factors indicates that an individual is considered to possess a
high level of medical fitness and, consequently, is medically fit for any
military assignment.  Numerical designators 2 and 3 indicate that an
individual has a medical condition or physical defect which requires
certain restrictions in assignment within which the individual
is physically capable of performing military duty.  The individual should
receive assignments commensurate with his or her functional capacity.
Numerical designator 4 indicates that an individual has one or more
medical conditions or physical defects of such severity that performance
of military duty must be drastically limited.  The numerical designator 4
does not necessarily mean that the individual is unfit because of
physical disability as defined in AR 635-40.

25.  Title 10, USC, section 12731a (Temporary Special Retirement
Qualification Authority), which became effective 5 October 1994, specifies
that a member of the Selected Reserve who has completed at least 15 years
but less than 20 years of service may be entitled to temporary special
retirement qualification when they no longer meet the qualifications for
membership in the Selected Reserve solely because the member is unfit
because of a physical disability, not due to misconduct, on or after 5
October 1994.  Under this provision, Soldiers who complete at least 15 but
less than 20 years of qualifying service and are deemed medically
disqualified for retention are eligible to receive retired pay at age 60.
The amount of retired pay is based on the total number of qualifying years
of service at time of removal rather than the 20 years normally required.

26.  The Manual for Courts-Martial provides in the Table of Maximum
Punishments, that the maximum sentence that may be imposed upon a Soldier
if convicted at trial by court-martial for the larceny of Government
property; making false official statements and, thereby committing fraud
against the United States; and forgery; is a dishonorable discharge or a
bad conduct discharge, confinement for up to 5 years, and a total
forfeiture of all pay and allowances, for each offense.

27.  AR 635-40 (Physical Evaluation for Retention, Retirement, or
Separation), Chapter 4, paragraph 4-1, states, in pertinent part, that
Soldiers charged with an offense under the UCMJ or who are under
investigation for an offense chargeable under the UCMJ which could result
in dismissal or punitive discharge, may not be referred for or continue
disability processing unless: a.)  the investigation ends without charges;
b.) the officer exercising proper court-martial jurisdiction dismisses the
charges; and c.) the officer exercising proper court-martial jurisdiction
refers the charge for trial to a court-martial that cannot adjudge such a
sentence.

28.  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.  The U.S. Court of Appeals, observing
that applications to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board exhaustion requirement
(Army Regulation 15-185, paragraph 2-8), effectively shortens that filing
period, has determined that the 3-year limit on filing to the Army Board
for Correction of Military Records (ABCMR) should commence on the date of
final action by the ADRB.  In complying with this decision, the ABCMR has
adopted the broader policy of calculating the 3-year time limit from the
date of exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 14 January 2005.
As a result, the time for the applicant to file a request for correction of
any error or injustice to this Board was 13 January 2008.  Therefore, the
applicant did file within the 3-year adjusted statue of limitations.

2.  The evidence shows that the applicant was given notice that action was
being initiated to discharge him from the Army under the provisions of AR
635-200, Chapter 14, for misconduct, on 10 January 2000.

3.  The reason the commander cited was that between February and August
1999, the applicant had stolen Government property and he had caused a
civil disturbance on 10 October 1999, by participating in a verbal
altercation with his girlfriend at his residence that was so disruptive
the police were called to his residence.  It was subsequently discovered
that he had wrongfully obtained the government quarters for himself and
his girlfriend and her two children under false pretenses, by making
false official statements, and had wrongfully cohabited with his
girlfriend and her two children in these Government quarters.

4.  In the notification for this action, the applicant was advised of his
rights and the requirement to have a physical examination and a mental
status evaluation.

5.  The applicant was given a mental status evaluation.  He was found to be
under a lot of stress due to personal problems related to his marriage,
problems with his wife's DUI, her hospitalization, and a recent permanent
change of station.  The applicant apparently did not reveal he had been
referred to a mental status evaluation because he was pending an
involuntary discharge, but the applicant did divulge that he would be
separating in the next few months.

6.  It appears the recommendation for this discharge for misconduct was
suspended after the applicant was notified that action was being initiated
to discharge him from the Army under AR 635-200, Chapter 14.

7. Because all the facts and circumstances surrounding the applicant's
discharge action are not available in his service records, the events of
the next few months are not complete.  The record does show the
applicant, a senior noncommissioned officer, departed from his unit in an
absent without leave status on three separate occasions for a total of
213 days.

8.  Item 21 (Time Lost), of the applicant's DA Form 2-1, shows the
applicant was confined in the hands of civil authorities on the day of his
discharge, 18 May 2001, and he had been confined since 29 October 2000.
This period of lost time was not transposed to the applicant's DD Form 214
on the day of his discharge due to an administrative error.  The Board has
a standing policy that it will not take actions to correct records and make
the applicant worse off than when he
applied for the correction of his records; therefore, this period of
absence without leave will not be added to the applicant's DD Form 214 as
lost time, despite its occurrence.

9.  Even though the applicant’s record is void of all 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 identifies the reason for, the characterization of his discharge, and
the authority under which he was discharged.  Government regularity in the
discharge process is presumed.

10.  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.

11.  The applicant was notified by his commander that he was initiating
action to separate him for his serious misconduct, under the provisions of
AR 635-200, Chapter 14.  After the initial notification, it appears this
action was suspended.  Subsequently, the applicant voluntarily requested
discharge for the good of the service in lieu of trial by court-martial
and this action was approved.  It was noted that each of the three charges
made against the applicant (theft of approximately $4,000 of Government
property; obtaining Government quarters for himself, his girlfriend, and
her two children, under false pretenses, by making false official
statements; and forgery), if convicted, could have resulted in his
receiving a dishonorable or bad conduct discharge, confinement for up to
five years, and a total forfeiture of all pay and allowances.

12.  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.

13.  The applicant's discharge was reviewed by the ADRB within its 15-year
statute of limitations and his discharge was found to have been both proper
and equitable.

14.  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.  In his over 17 years, 11 months, and 24
days service, the applicant had garnered only one Army Commendation Medal,
one Army Achievement Medal, two Good Conduct Medals, and one Army Reserve
Components Achievement Medal.  The remainder of his awards are service
awards.

15.  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 contends
that the punishment he got at discharge was too harsh and was much worse
than Soldiers with similar offenses.  His discharge, he states, was based
on many offenses but they were only minor offenses that should have been
viewed in consideration of all his record.

16.  There is no evidence, and the applicant provided none, to show that
he had been referred to the Army's physical disability system for
evaluation for a possible disability retirement.  The evidence is void of
any indication that during his military service he was determined to be
unfit because of a physical disability, not due to misconduct.

17.  The evidence shows that the applicant was charged with offenses under
the UCMJ for which he could be dismissed with a punitive discharge.  AR 635-
40 is clear that such a Soldier may not be referred for or continues
disability processing; therefore, the applicant could not be referred for
disability processing unless he was acquitted at trial.  The applicant did
not go to trial but, applied for discharge in lieu of trial by courts-
martial.

18.  On 12 June 2000, a date after he was notified he was being recommended
for discharge from the Army under the provisions of AR 635-200, Chapter 14,
the applicant submitted a claim to the VA for service-connected disability
compensation and benefits.

19.  On 17 June 2004, the VA made a determination in the case submitted to
them by the applicant.  The VA determined that the applicant had a 60%
overall service-connected disability rating.

20.  The VA has neither the authority nor the responsibility for
determining a Soldier's physical fitness for military service.  It awards
disability ratings to veterans for conditions that it determines were
incurred during military service and subsequently affect the individual's
civilian employability.  Any rating determination made by that organization
does not have any force or effect upon decisions made by the Army with
regard to separation or retention decisions made by the Army about its
Soldiers.

21.  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.

22.  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 or that he should be discharged for physical
disability reasons or that he should be retired from active duty under any
other provisions of law or Army regulation.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RJF____  _WDP___  __TMR__  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.




                                  ___William D. Powers______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050002488                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060105                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.   191                |110.0200                                |
|3.    338               |136.0000                                |
|4.   343                |16.0500                                 |
|5.                      |                                        |
|6.                      |                                        |


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