RECORD OF PROCEEDINGS


      IN THE CASE OF:    CLEVELAND, PAUL K.


      BOARD DATE:        19 September 2006
      DOCKET NUMBER:  AR20060002079


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Maribeth Love                 |     |Member               |
|     |Mr. Thomas M. Ray                 |     |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.

2.  The applicant states, in effect, at the time he was accused of assault
which led to his discharge and that the Judge Advocate counsel informed him
that there was no evidence that supported his claim of innocence.

3.  The applicant provides an undated self-authored statement; four-pages
of statements transcribed by the applicant; a two-page undated statement;
an undated JK Form 1066-1ER (Statement of Korean National); a JK Form 1066-
2EK (Affidavit to Translation of KNP Statement), dated 13 May 1980; a
Standard Form 600 (Chronological Record of Medical Care); and a Request for
a Chapter 10 Discharge in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 25 June 1980, the date of his discharge from active duty.  The
application submitted in this case is dated 24 January 2006.

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 enlisted in the Army, with parental consent, on 28 March
1977 for a period of 4 years.  After completion of basic and advanced
individual training, he was awarded military occupation specialty 17K
(Ground Surveillance Radar Repairman).  He served in Korea during the
period 4 August 1979 through 24 June 1980.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel
Qualification Record) shows he was imprisoned by civilian authorities for
reckless driving and evading a police officer during the period 17 February
1979 through 18 February 1979; and for being absent without leave (AWOL)
during the following periods 7 March 1980 through 8 March 1980; 7 May 1980
through 9 May 1980; 11 May 1980 through 14 May 1980; and 18 May 1980
through 19 May 1980.

5.  The applicant's service records reveal a disciplinary history that
includes his acceptance of nonjudicial punishment (NJP) under the
provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
the following two separate occasions for the offenses indicated:  on 10
March 1980, for being AWOL during the period 7 March 1980 through 8 March
1980; and on 28 April 1980, for willfully allowing an unlicensed driver to
drive a military vehicle on 20 April 1980.

6.  DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 10
May 1980, shows that an investigator from the United States Army Criminal
Investigative Division (CID) questioned the applicant regarding an
aggravated assault.

7.  DA Form 2823 (Sworn Statement), dated 10 May 1980, shows the applicant
provided a statement regarding his involvement in an altercation with two
other Soldiers on the night of 9 May 1980.  In summary, the applicant
stated that the altercation was started by a "Puerto Rican" Soldier and
that there were no weapons used.

8.  The applicant's service records contain an Agent Investigation Report
(AIR), dated 10 May 1980.  The Special Agent of the United States Army
Criminal Investigations Command (USACIDC) at Camp Casey, Korea stated on 9
May 1980 at 2200hrs, that he was advised by the Military Police Desk
sergeant that an aggravated assault had occurred at the Hill Top Club, Camp
Castle, Korea.  In summary, the Special Agent interviewed the applicant,
the two Soldiers who were "assaulted", the club's manager, two witnesses,
and two military police officers who were on duty that night.  The
witnesses' statements revealed conflicting viewpoints in which the two
Soldiers' claim that the applicant started the altercation which resulted
in the assaults.

9.  The AIR contains an entry which shows that on 12 May 1980, the case was
referred to "PMI" because the incident was not under the investigative
purview of the CID.

10.  JK Form 1066-1EK (Statement of Korean National), dated 12 May 1980,
shows a statement (translated into English) was provided by a female Korean
National.   The female Korean National's statement indicates that she and
the applicant were involved in an altercation with two Soldiers at the Hill
Top Club located at Camp Castle, Korea.  In summary, the female Korean
National stated that the fight was started by the two Soldiers.

11.  JK Form 1066-2EK (Affidavit to Translation of KNP Statement), dated
13 May 1980, shows that the translator certified that the translation of
Korean statements was true and an accurate translation to the best of
his/her knowledge.

12.  DA Form 3881, dated 20 May 1980, shows that an investigator from the
Military Police questioned the applicant, who was suspected for breach of
peace (Article 116, UCMJ), and for false swearing (Article 134, UCMJ).

13.  DA Form 2823, dated 20 May 1980, shows that the applicant provided a
statement after he was advised of his legal rights regarding breach of
peace and for false swearing.  The applicant indicated that the statement
he made on 10 May 1980 "contained various falsehoods."

14.  DA Form 2823, dated 21 May 1980, shows that PV2 [name omitted]
provided a statement regarding his involvement in the altercation with the
applicant.  In summary, at approximately 2130 hrs on 9 May 1980, at Hill
Top Club, Camp Castle, Korea, he and a fellow Soldier were involved in a
fight which was started by the applicant.  The Soldier stated that he did
not get involved until he saw the applicant assault his friend with a
knife.  The Soldier continued that when he approached his friend, the
applicant assaulted him with the knife, while the female Korean National
stabbed his friend in the back with a broken glass bottle.

15.  DA Form 2823, dated 30 May 1980, shows that PV2 [name omitted 2nd
Soldier] provided a statement regarding his involvement in the altercation
with the applicant on the evening of 9 May 1980.  In summary, the Soldier
stated that he and a fellow Soldier were involved in an altercation which
was started by the applicant.  The Soldier continued that the applicant and
the female Korean National assaulted him with a knife and a broken glass
bottle.

16.  The applicant's service records contain a Standard Form 600
(Chronological Record of Medical Care).  This form shows that at 2145 hrs
on 9 May 1980, a Soldier involved in the altercation with the applicant was
admitted to 2nd Engineer Battalion Aid Station.  This form shows that
medical treatment was administered for a severe two inch cut to the left
shoulder and several cuts on his back.

17.  The applicant's service records contain a Standard Form 600 which
shows    that at 2335 hrs on 9 May 1980, a Soldier involved in the
altercation with the applicant was admitted to the emergency room at the
2nd Medical Battalion.  This form shows that medical treatment was
administered to the Soldier with stitches to treat a laceration on his
right hand.

18.  The applicant's service records contain an undated 4-page statement
made by the applicant.  In part, the applicant indicated that he provided a
false statement to the CID regarding the fight and that at the time of
making the false statement, he was under the influence of drugs.

19.  On 22 May 1980, the applicant was charged with two specifications for
committing assault upon two Soldiers on 9 May 1980 by cutting them with a
knife; for being AWOL during the period 18 May 1980 through 20 May 1980;
and for disobeying a lawful general regulation by wrongfully exceeding the
set dollar amount limit for purchases he made during the month of March
1980.

20.  On 22 May 1980, the applicant's commander transmitted the court-
martial charges against the applicant and recommended a trial by special
court-martial.

21.  The applicant submitted an undated request for discharge for the good
of the service under the provisions of Army Regulation 635-200 (Active Duty
Enlisted Administrative Separations), Chapter 10.  In his request for
discharge, the applicant indicated that he had not been coerced into
requesting discharge and had been advised of the implications that were
attached to the request.

22.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial that provided for a
punitive discharge, the effects of a request for discharge for the good of
the service and of the rights available to him.  He further acknowledged
that he could be discharged under other than honorable conditions and be
furnished an Under Other Than Honorable Conditions Discharge Certificate.
He also stated that he understood
that as a result of receiving such a discharge, he may be deprived of many
or all Army benefits, that he could be ineligible for many or all benefits
administered by the Department of Veterans Affairs (VA), and that he could
be deprived of his rights and benefits as a veteran under both Federal and
State law.

23.  On 9 June 1980, the applicant submitted a statement in support of his
application for discharge under the provisions of chapter 10 of Army
Regulation 635-200.  The applicant stated his career record in the Army was
clean and promising until he received an Article 15 for being AWOL for 3
days.  He continues that he had earned a pass but was refused the
opportunity to use it and as a result went AWOL in frustration.

24.  The applicant further stated that he received two more Article 15s for
"similar minor errors" and was facing the possibility of a court-martial
conviction.  He continued that the reduction in grade affected him greatly
considering he is supporting his family.  The applicant contends that he
was mistreated which caused his poor performance and loss of motivation to
continue serving in the Army.  He concludes that his expiration of term in
service was within 9 months and that retraining would not regain the trust
and faith he had in the noncommissioned corps of the Army; therefore, both
he and the Army would benefit from approval of his request for discharge.

25.  On 14 June 1980, the commander of 2d Brigade, 2d Infantry Division,
APO San Francisco, recommended approval of the applicant's request for
discharge under the provisions of Chapter 10 of Army Regulation 635-200.
The commander stated that the applicant's acts of misconduct were not of
those expected of a young Soldier in "today's Army."  The commander
continues that actions such as the applicant's could very well have a
detrimental effect on the members of his unit and it would be in the best
interests of the applicant, his unit, and the United States Army if he were
discharged immediately.

26.  On 16 June 1980, the major general in command of Headquarters, 2d
Infantry Division, APO San Francisco, approved the applicant's request for
discharge under the provisions of Chapter 10 of Army Regulation 635-200.
The Commander also directed that the applicant be issued an Under Other
Than Honorable Conditions Discharge Certificate.

27.  The applicant's DD Form 214 shows that he was discharged on 25 June
1980 under the provisions of chapter 10 of Army Regulation 635-200, for the
good of the service in lieu of trial by court-martial.  This form further
shows he
was separated in the pay grade of E-1, and issued an Under Other Than
Honorable Conditions Discharge Certificate.  This form also shows he served
3 years, 2 months, and 15 days of net active service and had 13 days of
lost time.

28.  In an undated statement, the applicant contends that in May 1980, he
requested and received a chapter 10 discharge for the good of the service.
He continues that the discharge request was made due to being charged with
a court-martial offense.  The applicant further stated that after 26 years
he discovered that there were many statements which would have exonerated
him of the assault charges that had led to his request for discharge.  He
contends that a Judge Advocate General lawyer informed him that there was
no evidence that exonerated him and he could spend up to 8 years in prison.

29.  The applicant states the statements collected by the investigator
clearly shows that he was the victim of the assault by the two men, who
likely received their injuries during the course of the fight or by the
female Korean National who was with him that night.  The applicant freely
admits that he was a troubled young man on the night of the altercation and
may have been guilty of some of the infractions, but nothing that would
have warranted a court-martial, confinement, or a discharge.

30.  The applicant states that although he was not guilty of the charges,
he did request a chapter 10 discharge because he had no other recourse and
concludes that the statements from the investigation would have cleared him
of the assault charges and now warrants an upgrade his discharge.

31.  There is no evidence in the available records which shows that the
applicant applied to the Army Discharge Review Board for an upgrade of his
discharge within that board’s 15-year statute of limitation.

32.  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 at
any time after the charges have been preferred, submit 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.

33.  Army Regulation 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 (emphasis
added), 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.

34.  Army Regulation 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 the soldier’s separation specifically allows such
characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to an
honorable discharge because he recently discovered exonerating evidence
which supports his innocence.

2.  Notwithstanding the statements which show the applicant may have been
the "victim" the night of the altercation, the applicant's records clearly
show a pattern of indiscipline which includes being AWOL, reckless driving,
evading a police officer, willfully allowing an unlicensed driver to drive
a military vehicle, breach of peace, and making a false statement.

3.  Based on this record of indiscipline, the applicant's service clearly
does not meet the standards of acceptable conduct and performance of duty
for Army personnel.  This misconduct also renders his service
unsatisfactory.  Therefore, the applicant is not entitled to either a
general discharge or an honorable discharge.

4.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  All
requirements of law and regulation were met, and his rights were fully
protected throughout the separation process.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 June 1980; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 24 June 1983.  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

_JEA____  __TMR_  _ML   ____  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. Anderholm__
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060002079                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060919                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1980/06/25                              |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 10                  |
|DISCHARGE REASON        |Conduct triable by court-martial        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  189  |110.0000.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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