RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20050014848


      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. John J. Wendland, Jr.         |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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 under other than honorable
conditions discharge be upgraded to an honorable discharge and upgrade of
his reentry eligibility (RE) code.

2.  The applicant states, in effect, that he feels that he was forced out
of the Army.  He also states, in effect, that he was not guilty of what he
was charged with and that he was trying to make up for a shortage of
supplies.  He adds, in effect, that the Board should consider his
application at this late date because he moved several times over the years
and only recently found his discharge document.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty), with an effective date of 12 May
1989; five Extenuation and Mitigation Worksheets; six Character Witness
Request Forms; his Trial Defense Counsel's Statement, undated; Statement
from the Chief, Reutilization and Sales Branch, Defense Reutilization and
Marketing Office - Colorado Springs, Colorado, dated 1 May 1989, subject:
Statement Concerning Disposition of Sheets; and nine DD Forms 1348-1 (DOD
Single Line Item Release/Receipt Documents).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 12 May 1989, the date of his discharge.  The application
submitted in this case is dated 2 June 2004.

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 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's military service records show that he enlisted in the
Kentucky Army National Guard on 9 January 1981 for a period of 3 years.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty 11B (Infantryman).

4.  The applicant's military service records contain a copy a NGB Form 22
(National Guard Bureau - Report of Separation and Record of Service), with
an effective date of 14 December 1983, that was issued to the applicant for
the purpose of his reenlistment in the Texas Army National Guard (TXARNG).
This document also shows, in pertinent part, that the applicant was
honorably separated in the grade of rank of rank of specialist four (SP4)/E-
4.

5.  On 15 December 1983, the applicant enlisted in the TXARNG, in the grade
of rank of SP4/E-4, in MOS 11B, for a period  of 3 years and 23 days.

6.  The applicant's military service records contain a copy of a NGB Form
22, with an effective date of 9 April 1985, which shows, in pertinent part,
that the applicant was honorably separated from the TXARNG under the
provisions of NGR 600-200, paragraph 7-10r, for unsatisfactory
participation and transferred to the U.S. Army Reserve (USAR) Control Group
(Reinforcement).  This document also shows, in pertinent part, that the
applicant was separated in the grade of rank of private (PV2)/E-2, with a
date of rank of 27 March 1985.

7.  On 31 October 1985, the applicant enlisted in the USAR, in the grade of
rank of private (PV1)/E-1, for a period of 8 years.  On 15 May 1986, the
applicant enlisted in the Regular Army (RA) and entered active duty in the
grade of rank of PV1/E-1 for a period of 3 years.  Then, on 13 October
1988, the applicant reenlisted for a period of 5 years.

8.  The applicant’s service records contain a DD Form 458 (Charge Sheet),
which shows that on 14 April 1989, the captain in command of Company B,
1st Battalion (Mechanized), 8th Infantry, 4th Infantry Division
(Mechanized), Fort Carson, Colorado, preferred charges against the
applicant for, between on or about 27 February 1989 and 13 March 1989,
stealing 35 bed sheets of a value in excess of $100.00, military property
of the United States; and, on or about
13 March 1989, without proper authority, selling to an unknown person, 35
bed sheets of a value in excess of $100.00, military property of the United
States.

9.  On 2 May 1989, the applicant requested a discharge for the good of the
service in lieu of trial by court-martial under the provisions of chapter
10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).
 The applicant's legal counsel certified that he had advised the applicant
of the basis for the contemplated trial by court-martial under
circumstances which could lead to an under other than honorable discharge,
of the effects of the request for discharge, and the rights available to
the applicant.

10.  The applicant signed his request for discharge which showed that he
was making the request under his own free will and acknowledged guilt to
the offenses charged; that he was afforded the opportunity to speak with
counsel; that he was advised he may be furnished a separation under other
than honorable conditions; that he may be deprived of many or all Army
benefits; that he may be ineligible for many or all Veterans Administration
benefits; that he may be deprived of his rights and benefits as a veteran
under both Federal and State law; and that he may expect to encounter
substantial prejudice in civilian life because of an under other than
honorable discharge.  This document also shows that the applicant
understood that under the Uniform Code of Military Justice, the charge
preferred against him of selling military property carried a maximum
punishment of a dishonorable discharge and 10 years confinement and that
the charge preferred against him of larceny carried a maximum punishment of
a dishonorable discharge and 5 years confinement.

11.  The applicant indicated that he was submitting 21 statements in his
own behalf with his request for discharge.  These documents include, in
pertinent part, five Extenuation and Mitigation Worksheets, six Character
Witness Request Forms, his Trial Defense Counsel's Statement, and a
Statement from the Chief, Reutilization and Sales Branch, Defense
Reutilization and Marketing Office - Colorado Springs, Colorado, dated 1
May 1989, subject:  Statement Concerning Disposition of Sheets, along with
nine DD Forms 1348-1 (DOD Single Line Item Release/Receipt Documents),
which the applicant also provides in support of his application.  The
Extenuation and Mitigation Worksheets and Character Witness Request Forms
were submitted by three company grade officers and eight noncommissioned
officers who had served with the applicant.  In pertinent part, these
documents attest to the applicant's good character, work ethic, and
potential to be a productive Soldier in the future.  The Trial Defense
Counsel's Statement and Statement from the Chief, Reutilization and Sales
Branch, along with the nine DD Forms 1348-1, in pertinent part, provide
information concerning the procedures for authorized disposition of
excess/surplus government property, the value of the property in question,
and that the applicant made restitution for the property in question on 1
May 1989.  The personal statement that the applicant submits in support of
his request for discharge shows, in pertinent part, that the applicant
stated "Sir, I do not think that the lose (sic) of so much is a just
punishment for such a mistake.  Anyone can make a mistake, and I did, but I
learn from my mistakes.  Sir, I respectfully request a General Discharge."

12.  On 2 May 1989, the first lieutenant serving as acting company
commander of Company B, 1st Battalion (Mechanized), 8th Infantry, 4th
Infantry Division (Mechanized), Fort Carson, Colorado, indicated that he
had considered the personal information concerning the applicant and
information forwarded in support of the court-martial charges that resulted
in the applicant's request for discharge.  The acting company commander
recommended approval of the applicant's request for discharge from the U.S.
Army under the provisions of chapter 10 of Army Regulation 635-200.  His
recommendation included approval and issuance of an Under Other Than
Honorable Conditions Discharge Certificate.

13.  On 3 May 1989, the major serving as acting commander of the 1st
Battalion (Mechanized), 8th Infantry, 4th Infantry Division (Mechanized),
Fort Carson, Colorado, recommended approval of the applicant's request for
discharge from the U.S. Army under the provisions of chapter 10 of Army
Regulation 635-200.  His recommendation included approval and issuance of
an Under Other Than Honorable Conditions Discharge Certificate.  The acting
battalion commander indicated his reasons for the recommendation are
"[s]oldier has displayed less than desirable values and professionalism.
He does not set the proper example for soldiers in B co[mpany].  Chapter
action is quicker and less costly than a court-martial at this time."

14.  On 4 May 1989, the lieutenant colonel serving as acting commander of
the 3rd Brigade, 8th Infantry, 4th Infantry Division (Mechanized), Fort
Carson, Colorado, recommended approval of the applicant's request for
discharge from the U.S. Army under the provisions of chapter 10 of Army
Regulation 635-200.  His recommendation included approval and issuance of
an Under Other Than Honorable Conditions Discharge Certificate.  The acting
brigade commander indicated his reasons for the recommendation are "[t]he
[applicant's] conduct is totally unacceptable.  He stole and sold military
property for his own personal benefit.  This not only is a crime against
the Army but, also against his fellow soldiers who must do without until
replacements are obtained."

15.  On 8 May 1989, the major general serving as commander of Fort Carson
and 4th Infantry Division (Mechanized), Fort Carson, Colorado, approved the
applicant's request for discharge from the U.S. Army under the provisions
of chapter 10 of Army Regulation 635-200 and directed that an Under Other
Than Honorable Discharge Certificate be furnished the applicant.  The
commanding general also directed, in pertinent part, that the applicant be
reduced to the lowest enlisted grade effective the date of the approval of
the discharge.

16.  The applicant’s service records contain a copy of Headquarters, Fort
Carson, Headquarters, 4th Infantry Division (Mechanized), Fort Carson,
Colorado, Orders 000090-160, dated 10 May 1989, which shows, in pertinent
part, that the applicant was reduced in grade of rank from SP4 (E-4) to PV1
(E-1), effective 8 May 1989.
17.  On 12 May 1989, the applicant acknowledged receipt of the discharge
action by the commanding general and indicated "I fully understand its
meaning and effect, including the order not to enter the Fort Carson
reservation."  The document also shows that that applicant affixed his
signature to the document and that it was witnessed by a fellow Soldier.

18.  The applicant's DD Form 214 shows that he was discharged under other
than honorable conditions, on 12 May 1989, in accordance with the
provisions of chapter 10 of Army Regulation 635-200, for the good of the
service in lieu of trial by court-martial.  The DD Form 214 also shows
that, based on the authority and reason for his discharge, the applicant
was assigned a separation program designator (SPD) code of KFS and a RE
code of RE-4.  At the time of his discharge, the applicant served 2 years,
11 months, and 28 days of net active service during the period under
review.

19.  There is no evidence showing that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within its 15-year
statute of limitations.

20.  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.

21.  Army Regulation 635-200, paragraph 3-7, in effect at the time,
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 the Soldier's separation
specifically allows such characterization.

22.  Army Regulation 635-200, paragraph 3-7, also 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.

23.  Army Regulation 635-5-1 (Separation Program Designators) provides the
specific authorities (regulatory or directive), reasons for separating
Soldiers from active duty, and the SPD codes to be entered on the DD Form
214.  It identifies the SPD code of KFS as the appropriate code to assign
RA Soldiers discharged under the provisions of chapter 10, Army Regulation
635-200, who are discharged for the good of the service in lieu of trial by
court-martial.

24.  Pertinent Army regulations, in effect at the time of the applicant's
discharge, provide that prior to discharge or release from active duty, the
individual will be assigned a RE code, based on their military service
records or the reason for discharge.  RE-4 applies to persons who are
ineligible to reenlist unless a waiver is granted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his under other than honorable
conditions discharge and RE code should be upgraded because he was forced
out of the Army, was not guilty of the charges that were preferred against
him, and that he was only trying to make up for a shortage of supplies.

2.  The applicant's contentions and the supporting evidence he provides
were carefully considered.  The Board notes that the evidence the applicant
provides is the same evidence that he presented to his chain of command at
the time of his request for discharge.  In the applicant's request for
discharge, the applicant acknowledged that he understood the elements of
the offenses charged and that he was guilty of the charges against him.  He
also admitted to his mistake in his personal statement.  In addition, the
applicant provides no documentary evidence to support his claim that he was
conducting his prescribed duties in a lawful and proper manner in an effort
to alleviate a shortage of supplies in his unit. Therefore, there is
insufficient documentary evidence to support the applicant's contentions
that he was not guilty of the charges that were preferred against him and
that he was only trying to make up for a shortage of supplies in his unit.

3.  The applicant’s request for separation under the provisions of chapter
10 of Army Regulation 635-200 for the good of the service to avoid trial by
court-martial was voluntary, administratively correct, and in compliance
with applicable regulations.  Therefore, there is insufficient documentary
evidence that supports the applicant's claim that he was forced out of the
Army.

4.  The evidence of record shows that during the applicant’s period of
service under review he stole military property of the United States of a
value in excess of $100.00 and, without proper authority, sold to an
unknown person military property of the United States of a value in excess
of $100.00.  Thus, the applicant is not entitled to an honorable discharge.
 Furthermore, this service was not satisfactory; therefore, the applicant
is also not entitled to a general discharge.

5.  There is a presumption of administrative regularity in the conduct of
governmental affairs.  This presumption can be applied to any review unless
there is substantial creditable evidence to rebut the presumption.  In this
instance, the "presumption of regularity" is based upon Army Regulation
635-200, Chapters 2 and 3, which provide the procedures for separation and
specific guidance in determining the character of service and description
of separation.  Therefore, in the absence of evidence to the contrary, the
Board concludes that the applicant was properly and equitably discharged in
accordance with the regulations in effect at that time, all requirements of
law and regulations were met, and the rights of the applicant were fully
protected throughout the separation process.  As a result, the RE-4 code he
received was appropriately assigned based on the authority and reason for
his separation.  Consequently, the RE-4 code assigned was and remains
valid.  Furthermore, the applicant’s discharge accurately reflects his
overall record of military service for the period under review.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, 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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 May 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
11 May 1992.  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

__LDS___  __JTM__  __JLP___  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.




                                       __Linda D. Simmons___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014848                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19890512                                |
|DISCHARGE AUTHORITY     |AR 635-200, Chapter 10                  |
|DISCHARGE REASON        |For the Good of the Service             |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.0133.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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