RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060011156


	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.



	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 his under other than honorable conditions (UOTHC) discharge be upgraded to a more favorable characterization of service and reason for discharge.  He also asks, in effect, that his DD Form 214 (Certificate of Release or Discharge From Active Duty) be administratively corrected to show his proper rank, and that he be issued a DD Form 215 (Correction to DD Form 214) to provide missing information, as stated in Block 18 (Remarks).

2.  The applicant states he was never in any trouble serious enough to warrant an UOTHC discharge.  He states he was a Specialist (SPC/E-4), but his records only show Private First Class (PFC/E-3) and his DD Form 214 shows Private (PVT/E-1).

3.  The applicant also states the Internal Revenue Service (IRS) garnished a portion of his income tax refund because of a debt he allegedly owed the US Air Force.  He states he was never in the Air Force and he contacted them, but they never responded.  He would like this matter cleared up.

4.  The applicant provides:

	a.  His DD Form 4/1-3 (Enlistment/Reenlistment Document).

	b.  His DA Form 2-1 (Personnel Qualification Record), two copies.

	c.  Orders 88-17, Headquarters, US Army Berlin, dated 13 April 1989.

	d.  Three medical record documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 26 April 1989.  The application submitted in this case is dated 19 July 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's DA Form 2-1 (Personnel Qualification Record) shows that he served in the "Reserves – Not on Active Duty" from 19770901-19771112, a total of 2 months and 12 days.  It shows he performed "Active Duty for Training" from 19771113-19780309, a total of 3 months and 27 days.  No further information is available concerning this Reserve service.

4.  The evidence of record shows that on 16 December 1985, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP).  He was subsequently discharged from the DEP and enlisted in the Regular Army on 30 January 1986 for a period of 4 years.  Based upon prior military training, he was awarded military occupational specialty (MOS) 11B (Infantryman) and ordered directly to his first permanent duty assignment with Company C, 5th Battalion, 16th Infantry Regiment, Fort Riley, KS.

5.  The applicant was later transferred to Europe for a duty assignment with Company A, 6th Battalion, 502nd Infantry Regiment, Berlin Brigade, West Berlin, Federal Republic of Germany.  He arrived in Germany on/about 13 November 1987.

6.  The evidence of record shows the applicant received one nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave for 1 day on 26 January 1988.  His punishment consisted of 14 days extra duty.

7.  The evidence of record also shows the applicant received the Army of Occupation Medal, the Army Achievement Medal with Oak Leaf Cluster, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Pistol Bars.  It shows he entered active duty as a PVT/E-1 with date of rank (DOR) of 30 January 1986; he was promoted to PVT/E-2 with DOR of 1 March 1986; and he was promoted to PFC/E-3 with DOR of 3 October 1986.

8.  On 20 October 1988, the applicant is alleged to have stolen $185.00 from the wall locker of a fellow Soldier.  An investigation by unit noncommissioned officers (NCOs) identified the applicant as a suspect because he was in a "no pay due" status, but had paid a second Soldier $2.00 for trouser blousing garters, and he had been in the victim's barracks room.  Two NCOs confronted the applicant and recovered the money.  The applicant claimed he found it on the barracks floor.
9.  On 26 January 1989, the applicant's company commander notified the applicant of his intent to administratively discharge him under the provisions of chapter 14, Army Regulation (AR) 635-200 by reason of misconduct, commission of a serious offense.  The applicant acknowledged receipt, consulted with legal counsel, and requested consideration of his case before an administrative separation board.  He also submitted a statement in his own behalf in which he said he found the money on the floor of the barracks room and put it in his pocket.  He stated he was going to turn it in, but he had to go on detail.  Later when confronted, he lied about having the money because he was frightened.

10.  On 22 March 1989, the applicant changed his mind and waived an administrative separation board.  On 12 April 1986, the approving authority accepted the applicant's request for waiver, and directed his discharge UOTHC and reduction to the lowest enlisted grade.

11.  On 23 April 1989, the applicant was transferred to Fort Dix, NJ where, on 26 April 1989, he was reduced to PVT/E-1 and given an UOTHC discharge.  He was separated on temporary records; therefore, his DD Form 214 is largely incomplete in Block 11 (Primary Specialty Number, Title and Years and Months in Specialty), Block 12 (Record of Service), and Block 13 (Decorations, Medals, Etc.).

12.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldier’s service is so meritorious that any other characterization would be clearly inappropriate.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.

13.  AR 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  It provides:

	a.  Block 11 – enter the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served.  The applicant served in MOS 11B1O for 3 years and 3 months.


	b.  Block 12d – Total Prior Active Service.  From previously issued DD Forms 214, enter total amount of prior active military service less lost time, if any. If not applicable, enter "00 00 00."  The applicant has no prior DD Form 214 in his records, so this entry is correct.

	c.  Block 12e – Total Prior Inactive Service.  Enter the total amount of prior inactive service, less lost time, if any.  DEP time that began on or after 1 Jan 85 is not creditable service for pay purposes and will not be entered in this block.  The applicant had 6 months and 9 days of prior inactive service.

	d.  Block 12f – Foreign Service.  Enter the total amount of foreign service completed during the period covered by the DD Form 214.  The applicant served in Germany from 13 November 1987 to 23 April 1989 for 1 year, 5 months, and 11 days of foreign service.

	e.  Block 13 – List awards and decorations for all periods of service in priority sequence.  The applicant was awarded the Army Achievement Medal with Oak Leaf Cluster, the Army of Occupation Medal for service with the Berlin Brigade, the Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Pistol Bars.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was accused of the commission of a serious crime.  His discharge proceedings under the provisions of chapter 14, AR 635-200 were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the nature of the offense he was accused of having committed.

2.  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.

3.  When he was separated under the provisions of chapter 14, AR 635-200, that regulation provided that the applicant be reduced to the lowest enlisted grade.  His DD Form 214 correctly shows his grade as PVT/E-1.

4.  Evidence shows that the applicant’s record contains administrative errors which do not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management 
Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 3 of the BOARD DETERMINATION/RECOMMENDATION section below.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 April 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 April 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

__jea___  __swf___  __rsv___  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.

3.  The Board determined there are administrative matters that should be corrected.  Therefore, the Board requests that CMSD-St. Louis administratively correct the applicant’s DD Form 214 with a separation date of 26 April 1989 to show:

	a.  in Block 11 (Primary Specialty Number and Years and Months in Specialty) the entry "P 11B1O0000  3 YEARS  3 MONTHS";
	b.  in Block 12e (Total Prior Inactive Service) the entry "00  06  09";

	c.  in Block 12f (Foreign Service) the entry "01  05  11"; and

	c.  in Block 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the entry "ARMY ACHIEVEMENT MEDAL W/OAK LEAF CLUSTER, ARMY OF OCCUPATION MEDAL, ARMY SERVICE RIBBON, EXPERT MARKSMANSHIP QUALIFICATION BADGE WITH RIFLE AND PISTOL BAR."



							James E. Anderholm
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011156
SUFFIX

RECON

DATE BOARDED
20070306
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19890426
DISCHARGE AUTHORITY
AR 635-200 C14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.
110.0000
3.

4.

5.

6.