RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 September 2007
      DOCKET NUMBER:  AR20070005532


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Jeffrey C. Redmann            |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 (UOTHC) discharge be upgraded; that his reentry (RE) code be
changed to one more favorable; and that numerous mistakes on his separation
document (DD Form 214) be corrected.

2.  The applicant states, in effect, that his first name is misspelled in
Item 1 (Name) of his DD Form 214, in that it does not contain the letter
"i" in the fourth character.  He also states that Item 7a (Place of Entry
on Active Duty) should either be the Los Angeles Military Entrance and
Processing Station (MEPS) or Fort Leonard Wood, Missouri, where he attended
basic and advanced individual training.  He further states that Item 12f
(Foreign Service) is incorrect because it does not account for all of his
overseas service.  He also states that Item 13 (Decorations, Medals,
Badges, Citations and Campaign Ribbons Awarded or Authorized) does not
include the Overseas Service Ribbon, Korea Defense Service Medal, Army Good
Conduct Medal, and Army Achievement Medal he earned.  He further states
that the entry in Item 18 (Remarks) indicating that he did not complete his
first full term of service is clearly incorrect, as evidenced by his
reenlistment papers.

3.  The applicant further states that the reasons supporting an upgrade of
his discharge are clemency, in that he has lead a productive life since his
discharge. He also states that he lacked legal counsel and that the
discharge authority was biased.  He claims he never received adequate legal
counsel when he returned to Germany and was charged with being absent
without leave (AWOL).  He claims he requested to consult with legal counsel
and only after several requests and several days was he allowed to consult
with a Judge Advocate General (JAG) attorney.  He further states he was not
aware his commander in Germany would be advising him of his discharge and
the main reason he went AWOL to begin with was his fear of his commander
retaliating against him.  He states that his commander cursed him when he
returned late from leave and accused him of being AWOL and stated that if
he had his way, the applicant would be spending years behind bars at
Leavenworth.

4.  The applicant claims that upon his return from leave he received
negative counseling statements and he refused to sign them because he
believed them to be false and only an attempt to stacking charges against
him.  He states that when he heard his daughter had been readmitted to the
hospital, he went to his chain of command with his concerns and was flatly
told they did not care and he would be staying at the unit on lockdown.  He
states that it was at this point that he decided to leave based on his
concern for his daughter and because he believed he would never be able to
receive fair treatment.
5.  The applicant claims that before this incident, he had never been a bad
Soldier and never had received negative counseling statements or non-
judicial punishment.  He states that at this point he had received the Army
Good Conduct Medal (AGCM) and had even reenlisted to go to Germany.  He
claims he saw his hopes of a future fade when he refused to cover up and
urged others not to cover up a hazardous waste spill, after which the
attitude of his chain of command toward him clearly changed.  He states
before he was able to report the spill to the Inspector General (IG), he
went home on leave for his daughter's birth.  He states his daughter was
hospitalized after her birth and continually contacted the battalion staff
duty regarding his leave many times.  He claims it is his belief that he
was treated unfairly during this situation because of the hazardous waste
spill and does not think his unit commander should have had any say on his
discharge given he had knowledge and proof of a crime committed under his
command.

6.  The applicant provides the following documents in support of his
application:  Military Records Documents; Army Discharge Review Board
(ADRB) Case Report; Pictures of Hazardous Spill; Third-Party Statement
(Wife); Proof of Identity; and Post-Service Accomplishment Documents.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he enlisted in the Regular Army for a
period of 3 years and entered active duty on 3 October 1995, from the Los
Angeles, California, MEPS. The applicant successfully completed One Station
Unit Training (OSUT) at Fort Leonard Wood, Missouri, and was awarded
military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) contains
an entry in Item 5 (Overseas Service) that shows the applicant began a tour
in Korea on 16 February 1996.  The tour completion (thru) in Item 5 is
illegible.  There is also an entry that shows he began his tour in Germany
on 4 April 1999.

4.  Item 35 (Record of Assignments) of the applicant's DA Form 2-1 shows he
arrived for duty at Fort Hood, Texas, on 20 February 1998.

5.  The applicant's record contains a Personnel Action (DA Form 4187),
dated
12 December 1997, in which the applicant's unit commander recommended him
for promotion to specialist (SPC).  This form confirms the applicant was
assigned to the 44th Engineer Battalion in Korea at that time.

6.  On 25 June 1998, while assigned to Company B, 299th Engineer Battalion,
Fort Hood, Texas, the applicant reenlisted in the RA for 3 years.

7.  In December 1998, the applicant's request for a name change was
approved in a memorandum published by the Assistant Personnel Officer,
502nd Personnel Service Battalion, Fort Hood, Texas.

8.  On 30 November 1999, the applicant departed absent without leave (AWOL)
from his organization in Baumholder, Germany.  He remained away until 5
June 2000, at which time he returned to military control and was assigned
to the Personnel Control Facility, Fort Sill, Oklahoma.

9.  On 8 June 2000, a Charge Sheet (DD form 458) was prepared preferring a
court-martial charge against the applicant for violating Article 86 of the
Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 30
November 1999 through on or about 5 June 2000.

10.  The applicant consulted with legal counsel and was advised of the
basis for the contemplated trial by court-martial and the maximum
permissible punishment under the UCMJ; of the possible effects of an UOTHC
discharge if his request for discharge were approved; and of the procedures
and rights available to him.  Subsequent to this counseling, the applicant
voluntarily requested discharge for the good of the service in lieu of
trial by court-martial.

11.  In his request for discharge, the applicant admitted guilt to the
charge preferred against him or to a lesser included offense therein
contained which also authorized the imposition of bad conduct discharge.
He further stated that under no circumstances did he desire to perform
further military service.  He also acknowledged that he understood that if
his request for discharge were approved, he could receive an UOTHC
discharge and that he was advised of the possible effects of such a
discharge, which included that he could 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 State and Federal law.
He finally acknowledged that he understood that he could encounter
substantial prejudice in civilian life because of an UOTHC discharge.

12.  On 30 January 2001, the separation authority approved the applicant's
discharge and directed he receive an UOTHC discharge and that he be reduced
to the lowest enlisted grade.  On 28 February 2001, the applicant was
discharged accordingly.

13.  The DD Form 214 issued to the applicant upon his discharge on 28
February 2001, shows he completed a total of 4 years, 10 months and 19 days
of creditable active military service and that he accrued 180 days of time
lost due to AWOL.  Item 1 is void of the letter "i" in the fourth character
of his first name.  Item 7a indicates he entered active duty at Fort Hood,
Texas.  Item 12f (Foreign Service) shows he completed 1 year of overseas
service and Item 18 contains the entry "MEMBER HAS NOT COMPLETED FIRST FULL
TERM".  Item 13 (Decorations, Medals, Badges, Citations and Campaign
Ribbons Awarded or Authorized) shows he earned the following awards during
his active duty tenure:  National Defense Service Medal; Army Service
Ribbon; Expert Marksmanship Qualification Badge with Rifle Bar; and
Marksman Marksmanship Qualification Badge with Grenade Bar.

14.  On 31 July 2002, after carefully considering the applicant's case and
reviewing his entire record of service, the ADRB determined the applicant's
discharge was proper and equitable, and it voted to deny the applicant's
request that his discharge be upgraded.

15.  The applicant provides photos of what he alleges is a hazardous spill;
however, he provides no corroborating evidence that this incident was in
anyway related to his discharge processing.  He also provides a third-party
statement from his wife, in which she supports his allegations and attests
to his good character.

16.  The applicant also provides proof of the spelling of his name, which
includes his driver's license, social security number card and military
identification card.  He also provides certificates showing his completion
of various courses and his post service accomplishments.

17.  Army Regulation 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 also
establishes standardized policy for preparing and distributing the DD Form
214, and
chapter 2 contains item-by-item preparation instructions for the DD Form
214.

18.  The separation documents regulation instructions for Item 1 of the DD
Form 214 state that the name listed on a member's record should be entered,
and it indicates that the record and enlistment contracts should be
reviewed for possible name changes.  The instructions for completing Item
7a (Place of Entry Onto Active Duty) state that a Soldier's initial
enlistment contract or appointment document is the source for this data.
It further states to enter the city and state where the Soldier entered
active duty.  The instruction for Item 12f state to enter the total amount
of foreign service completed during the period covered by the DD Form 214.


19.  The separation documents regulation instructions for Item 18 state, in
pertinent part, that routinely a Soldier should not be considered to have
completed the first full term of active service if separation occurs before
the end of the initial contracted period of service.  However, if a Soldier
reenlists before the completion of that period of service, the first term
of service is effectively redefined by virtue of the reenlistment contract.
 22.  The Item 18 instructions further state that to determine if an
enlisted Soldier has completed the first full term of enlistment, refer to
the enlistment/reenlistment documents and compare the term(s) of enlistment
to the net service in block 12c of the DD Form 214.  If the Soldier has
completed or exceeded the initial enlistment, enter "has."  If item 12c of
the DD Form 214 is less than the Soldier's initial enlistment, enter "has
not."

20.  Army Regulation 600-8-22 (Military Awards) contains the Army's awards
policy.  Paragraph 2-20 contains guidance on the Korea Defense Service
Medal (KDSM).  It states, in pertinent part, that it is authorized to
members who served in Korea for 30 consecutive or 60 non-consecutive days
between 28 July 1954 to a date to be determined by the Secretary of
Defense.

21.  Paragraph 5-4 of the awards regulation contains guidance on the
Overseas Service Ribbon (OSR).  It states, in pertinent part, that it is
awarded to Soldiers who are credited with a normal overseas tour
completion.  Numerals will be used to denote second and subsequent awards
of the OSR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the first name entered in Item 1, the
entry in Item 7a, the total overseas service entry in Item 12f, and the
entry in Item 18, which indicated that he had not completed his first
enlistment were incorrect was carefully considered and found to have merit.
 His claim of entitlement to the OSR and KDSM was also considered and found
to have merit.

2.  By regulation, the name listed on a member's record will be entered in
Item 1; the place of entry onto active duty as recorded on a member's
initial enlistment contract will be entered in Item 7a; the total amount of
overseas service completed during the period covered by the DD Form 214
will be entered in Item 12f; and the first fully term of service entry in
Item 18 will show the member has completed his first full term if his total
service in Item 12c exceeds the term of his initial enlistment.

3.  The evidence of record confirms the spelling of the applicant's first
name includes the letter "i" in the fourth character; therefore, the Item 1
entry should be corrected accordingly.  The record further shows that he
initially entered active duty from the MEPS Los Angeles, California.
Therefore, Item 7a of his DD Form 214 should be corrected accordingly.  His
record also shows he completed
2 years of overseas service in Korea and 7 months and 27 days in Germany
prior to going AWOL.  Therefore, the entry in Item 12f should be corrected
to show he completed a total of 2 years, 7 months and 27 days of overseas
service and he is entitled to the KDSM and OSR based on service and tour
completion in Korea and these awards should be added to the list of awards
contained in Item 13 of his DD Form 214.

4.  The applicant's record confirms he completed a total of 4 years, 10
months and 19 days of creditable active military service at the time of his
discharge, and that he had completed more than 4 years of service  prior to
committing the AWOL offense that resulted in his discharge.  Therefore, it
would be appropriate to correct the first full term entry in Item 18 by
deleting the current entry and replacing it with the entry "SOLDIER HAS
COMPLETED FIRST FULL TERM OF SERVICE".

5.  The applicant's contention that his discharge should be upgraded and he
should be assigned a more favorable RE code because his discharge was
unjust was also carefully considered.  However, the evidence of record
confirms he was charged with the commission of an offense punishable under
the UCMJ with a punitive discharge.  It further shows that after consulting
with defense counsel, the applicant voluntarily requested discharge from
the Army in lieu of trial by court-martial.

6.  In the applicant's request for discharge, he admitted guilt to the
charge against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  All
requirements of law and regulation were met and that the rights of the
applicant were fully protected throughout the separation process.

7.  There is no evidence of record to corroborate the applicant's claim
that his discharge was based on the bias of his commander as a result of
his having knowledge of a hazardous waste spill, and although his post
service accomplishments are noteworthy, they alone do not support an
upgrade of his discharge.  The record shows the applicant voluntarily
requested discharge to avoid a court-martial that could have resulted in
his receiving a punitive discharge.  The UOTHC discharge he received was
normal and appropriate under the regulatory guidance and as a result, there
is an insufficient evidentiary basis to support an upgrade at this time.

8.  Further, the RE code assigned the applicant upon his discharge was the
appropriate code for members separated under the provisions of chapter 10,
Army Regulation 635-200, in lieu of trial by court-martial.  Therefore, it
was and remains valid and there is insufficient evidence to support a
change to a more favorable code at this time.

9.  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 regarding an upgrade of
his discharge or a change to his RE code.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JCR _  __DEC __  __QAS _  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 amending his DD Form 214 as follows:

      a.  Item 1 - delete the current first name entered and replace it
with the first name "CASIMIR";

      b.  Item 7a - delete the current entry and replace it with the entry
"Military Entrance Processing Station, Los Angeles, California";

      c.  Item 13 - add the Korea Defense Service Medal and Overseas
Service Ribbon;

      d.  Item 18 - delete the current entry pertaining to first full term
of service and replace it with the entry "SOLDIER HAS COMPLETED FIRST FULL
TERM OF SERVICE";  and

      e.  by providing him a correction to his separation document that
includes these changes.

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
an upgrade of his discharge and change to a more favorable reentry code.




                                  _____Jeffrey C. Redmann____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070005532                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/20                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |2001/02/28                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C10                                     |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  1021 |100.0000                                |
|189                     |110.0000                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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