RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        21 September 2006
      DOCKET NUMBER:  AR20050009916


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. David W. Tucker               |     |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 honorable discharge under
Secretarial Authority be voided and that he be retired and authorized back
pay.

2.  The applicant states that, in view of his outstanding record of service
and the facts of the case, depriving him of retirement is too harsh.  He
dates the discovery of the injustice as the date of the discharge upgrade
by the Army Discharge Review Board (ADRB).

3.  The applicant provides his personal statement, copies of the revised
discharge, and letters of character reference and support from four
professional individuals and a friend.

CONSIDERATION OF EVIDENCE:

1.  The applicant, a career Armor Branch, Regular Army noncommissioned
officer (NCO) was promoted to sergeant first class (SFC), pay grade E-7 on
1 May 1985.  He was stationed at Fort Knox, Kentucky where he was awarded
the Army Commendation Medal and the Good Conduct Medal (Sixth Award).  He
reenlisted in March 1990 to have sufficient time for overseas assignment
and was assigned to Germany for duty with the 1st Armored Division.

2.  Following Operation Desert Shield/Storm, where he was awarded the Army
Commendation Medal with Oak Leaf Cluster, he was awaiting follow-on
transportation in Germany.  He was apprehended by the security police at
Rhein Main Air Force Base on 29 September 1991.

3.  The incident report shows that the security police responded to a
telephone report to the effect that two individuals were detaining the
third [later identified as the applicant] who had reportedly “entered
D____’s vehicle and was trying to pull out the stereo and amp.”

4.  The narrative of the security police investigation report states,
“D____ and P____ further related that when they arrived at Bldg # 400/PAX
Terminal, they parked next to a yellow car belonging to [applicant].  They
left the car parked for about 30 min.  When they returned they saw an
individual inside their vehicle.  P____ then ran back inside to call the
security police.  D____ made contact with [applicant] and made him stay in
the car until the security police arrived on scene.  The patrols made
contact with [applicant], placed him under apprehension, and searched him.
[Applicant] was asked to consent to search of his vehicle and a locker that
held his luggage, which he did via AF Form 1364 (Consent for Search and
Seizure).  A search of the locker was conducted with negative findings.  A
search of the vehicle, a 1981 Pontiac Grand Prix License
# LW 6816 was then conducted.  The patrol found one camouflaged poncho and
one black bag containing: one Sony Discman Serial #600686, one Kenwood car
stereo cassette adapter, and ten compact discs.  The property was
identified by D____ as belonging to him.  [Applicant] was then transported
to the LED.  He was read his rights IAW Article 31, UCMJ, which he
acknowledged.  He did not request legal counsel and made a statement.
[Applicant] stated that he pulled his car into the terminal parking lot and
got out of his vehicle.  He further stated that he noticed a black bag
sitting on the ground between his vehicle and the other vehicle.  He stated
that he picked up the bag, checked it out, and put it into the back seat of
his vehicle.  When he was getting out of his vehicle, D____ forced him back
into the vehicle.  He did not remember even getting into D____’s vehicle.
[Applicant] consented to the Alcotest 7110 which resulted in a 1.29 BAC.
[Applicant] was released to the Frankfurt Military Police at 0545.”

5.  The details of the applicant’s separation processing are not contained
in the available records.  He was separated, on 4 November 1992, with an
under other than honorable conditions (UOTHC) discharge under the
provisions of Army Regulation 635-200, chapter 10 and administratively
reduced to pay grade E-1 under the provision of paragraph 1-13.

6.  The applicant had 20 years, 3 months, and 28 days of creditable service
and no lost time.  His awards include the Army Commendation Medal with Oak
Leaf Cluster, the Army Achievement Medal, the Good Conduct Medal (6th
Award), the NCO Professional Development Ribbon with numeral “3”, the Army
Service Ribbon, the Overseas Service Ribbon with numeral “3”, the Southwest
Asia Service Medal with one bronze service star, and the Expert
Marksmanship Qualification Badge with Pistol Bar.

7.  His NCO Evaluation Reports show that, after his promotion to SFC the
applicant never received a less than maximum rating under the old system.
Under the new system he always received rater evaluations of, at least,
“Success (meets Standards)” and his senior raters, with the single
exception of one second box ranking, always marked his overall performance
and potential in the first box.

8.  Army Regulation 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 a request for discharge for
the good of the service in lieu of trial by court-martial.  The request may
be submitted at any time after charges have been preferred and must include
the individual's admission of guilt.  Although an honorable or general
discharge is authorized, a discharge under other than honorable conditions
is normally considered appropriate.  Paragraph 1-13 of the regulation
provides that when a Soldier is to be discharged under other than honorable
conditions, the separation authority will direct an immediate reduction to
the lowest enlisted grade per Army Regulation 600-8-19, chapter 7.

9.  On 11 April 2005 the Army Discharge Review Board heard the applicant’s
personal testimony and concluded that his discharge was inequitable.  The
members considered that the circumstances of the incident mitigated the
seriousness of the offenses and that his service was of sufficient length
and merit as to warrant a change in the discharge.  The Board also noted
the evidence of the applicant’s post service behavior and his service to
the community.  They voted to upgrade his discharge to honorable and
concluded that he should be restored to pay grade E-7.

10.  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 applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's 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.

11.  The statements submitted in support of the applicant’s request include
the following:

      a.  The Chairperson of the City Planning and Zoning Commission
considers him a valuable member of the community.  He has helped her by
attending meetings to assist her with public hearings.  He assists elderly
persons by running errands and helping them maintain their homes.  He helps
the Volunteer Fire Department raise money for mentally challenged children
and assisted in raising funds for uninsured persons who need surgery.  He
is considered a valuable and needed person who is held in high regard by
the citizens of West Point, Kentucky for his morals, his integrity and his
deeds.

      b.  A retired detective states that he has known the applicant for 12
years. He considers the applicant a wonderful human being and an
outstanding leader.  His community service is above and beyond any
expectations.  He has volunteered to help the homeless, especially homeless
veterans.  He volunteers at the local Veterans Hospital and even writes
letters for those who need such help.  “He is tireless, dedicated, and I
have a great deal of respect for him.  There aren’t that many people these
days who are so giving of themselves.  He served his country well, and it
is his country’s turn to serve him back.”

      c.  The Program Director of the Kentucky USO relates that he has known
the applicant since 1989 when he volunteered at the Louisville airport
helping service members and their families who were relocating.  He also
volunteered at the USO centers in Louisville and at Fort Knox.

The state director relates, “…I cannot tell you how valuable he was to us,
until his own deployment.  And even then he would write to us and give us
names of troops with him who received no mail and needed morale building.
Through him we delivered many needed items to many troops and received much
thanks from those troops.”

“When he came back to Kentucky, he was again a USO volunteer and is still
one of our most valuable [ones] today.  His deep love and concern for our
American Heroes has seen us through the Afghanistan and Iraq deployment and
Family Assistance.…”

      d.  A registered nurse reports that she  has known the applicant as an
active participant in a neighborhood association for 9 years.  He initiated
a “Block Watch Program”, worked on beautification of the neighborhood, and
assisted neighbors in need.

She states, “…I consider him a man of his word.  He showed leadership in
all activities we undertook.  He was dependable, honest and hardworking.”

“He promoted our neighborhood’s Americanism, by promoting our neighbors to
display their American Flags.  He assisted the Bedford Manor Baptist Church
with their after-school activities for children and Summer Bible Classes.”

“We all admire him and consider him one of our most caring citizens.  He is
a leader and people follow his lead.  Our neighborhood association is one
of the
best in the city due to him.  He has organized many programs for our
seniors and children, a feat most would not get involved in.”

“We love and respect him for all he does and [he] deserves any and all
rewards he receives.”

      e.  The applicant’s own statement reflects his own love of the Army
and the sense of loss he feels at having given up on his career so easily.



He relates, “…The charges were stacked up (entering a military installation
for the purpose of mischief, tampering with evidence, etc, etc).  The
charges went on and on.  I was charged with theft of the CDs and with all
the charges, it added up to 26 years in jail…I knew nothing of what they
were talking about.  I talked to my 1-35 CSM [command sergeant major] and
he stated it was funny and I forgot about it.…I do not  know the date my 1-
35 CSM called me in…that was the end of everything, I never felt so little
in my life, the person who could kick some major butt was on his knees.
Being told I could do 26 years in jail my name was turning to mud.  I knew
the media would get this and all my friends would see it.  I could not
handle it.  My lawyer…stated I should take a chapter 10.…  That day I made
the worst decision of my life…I have paid for that decision…Once I was out
I had to work 2 jobs and sometimes 3…I could not get a good job…But it was
my fault…Since the day I was given bad advice and made a bad decision I
have not had alcohol….”

DISCUSSION AND CONCLUSIONS:

1.  Considering that the applicant reasonably dates the discovery of the
injustice as the day of the ADRB decision, the application has timely
filed.

2.   The applicant’s drunken behavior is not condoned; however, in view of
all of the circumstances of this case, the treatment he received was, as
the ADRB recognized, too harsh.

3.  The alleged offenses hardly fit the facts of the real situation and the
ultimate punishment, which amounts to a substantial financial loss, is
excessive, even if the applicant had intended to commit those offenses.

4.  Given the applicant’s otherwise excellent record of military service,
his behavior and steadfastness in the post-service period, the esteem in
which he is held in his community, and the fact that the members of the
ADRB panel granted
him an honorable discharge demonstrate that justice would be served by now
restoring, as a matter of equity, the retirement that the applicant earned,
applied for, and with this Board action will receive.

5.  Since the applicant’s post service behavior and conduct is an important
element in establishing the basis for clement relief, earlier retirement
and back pay are not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

_JCR____  __DWT__  __WFC_  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by;

      a.  showing that, effective the first day of the month following the
date this Board action is approved, he was placed on the Retired List; and


      b.  authorizing retired pay and benefits from that date forward.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
voiding of his discharge, retirement and back pay effective from the date
of the discharge.




                            _     _William F. Crain_____
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR020050009916                          |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060921                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION GRANT    |GRANT PART                              |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|136.00                  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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