IN THE CASE OF:	

		BOARD DATE:	  15 January 2009

		DOCKET NUMBER:  AR20080016979 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the character of his 1991 discharge be upgraded to honorable, that his rank of Sergeant (E-5) be restored, that the reason for his discharge be changed to show he completed his term of service, and that his Reentry (RE) Code be changed to RE-1 to permit him to return to military service.

2.  The applicant defers to counsel to make his argument for upgrading the character of his discharge.

3.  The applicant provides a copy of a July 1991 Sworn Statement rendered by him as part of the USACIDC (United States Army Criminal Investigation Command) investigation, a supporting statement from his former girlfriend (who is now his spouse), a supporting statement from a retired Army Sergeant Major, a 1992 memorandum addressed "To Whom It May Concern" which outlines the applicant's leadership skills, and copies of several letters of appreciation/commendation received while he was still on active duty. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant and his then girlfriend utilized a phone that was in the applicant's civilian apartment in Germany for which he had never requested service.  Counsel notes the applicant eventually believed that he would receive a bill for the phone calls.  Counsel states the applicant was 
unaware that his girlfriend, who is now his wife, made extensive calls to her 
family in Panama because she was lonely, pregnant, and the applicant was working 24 hour shifts.  He states the charges came to light when the applicant's neighbor received a phone bill, complained to the postal directorate, and an investigation was then launched.  Counsel notes there was never any proof the applicant tampered with the phone wiring outside his apartment.   

2.  Counsel states the applicant always intended to pay for the charges and did in fact pay the costs prior to his discharge.  Counsel states he believes the investigators relied on two statements from the applicant to charge him with larceny.  He states one of the statements was in response to the applicant acknowledging that he had made calls to Florida and that his girlfriend made a number of calls to Panama and he accepted "responsibility for her calls, too."  The other statement was in response to a question by the investigator about what the applicant would have done had he completed his tour of duty in Germany without ever being charged for the phone calls and he responded that he would "have left without paying for it."

3.  Counsel states the applicant was never told there were any alternatives other than to request discharge in lieu of court-martial.  He was scared and relied on the advice of his military counsel.  Counsel notes the applicant had never been in trouble before, had served honorably for more than 8 years and was from a military family.  He states while in the military the applicant was commended for his performance of duty from a variety of leaders.  He notes the applicant gave his all to the military and loved military service.  His tragic ending to his career does not do justice to the type of Soldier he was.  

4.  Counsel acknowledges the applicant recognizes he made a bad decision in 1991 and should have challenged the charges alleged against him, but he paid the debt that was owed, and he took financial responsibility for the calls that were made, even though the majority were made by his girlfriend to her family in Panama.

5.  Counsel notes the applicant is committed to his work and family and desires to have this incident removed from his military records so he can return to military service and make amends for the bad situation he found himself in when discharged.

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

3.  Records available to the Board indicate the applicant entered active duty on 23 August 1983 after several months in the Delayed Entry Program (DEP).  He was trained as a military policeman and performed duties at Fort Bragg, North Carolina and in Puerto Rico, Panama, and the Sinai prior to being assigned to an armored division in Germany in August 1990.  The highest grade he attained while on active duty was Sergeant (E-5).  He was promoted to that grade in June 1986.

4.  Although the applicant's record does not contain any performance evaluation reports, the copies of the letters of commendation and appreciation the applicant provided suggest he was a productive Soldier.  His awards included an Army Commendation Medal, Army Achievement Medal, and two awards of the Army Good Conduct Medal.  He successfully completed multiple military training courses, including the Primary Leadership Development Course in 1988.

5.  According to information contain on the 1991 sworn statement submitted by the applicant in support of his request, he moved into his apartment in Germany in November 1990 and moved out in February 1991.  He stated he never ordered telephone service or paid a telephone bill.  He admitted to making calls to Florida and accepted responsibility for his girlfriend's calls to Panama between 3 and 
17 January 1991 totaling "7000 charge units."  The applicant stated that he thought eventually "Bundesport" would come to his apartment and give him a bill for the phone service and he would have to pay but also stated that he believed the telephone company would have taken a loss for his receiving phone service without paying for it and would have passed that loss on to the consumer.  He stated that he guessed "stealing" was the only thing he could call it.  He also admitted that he never received any incoming calls to the apartment phone because he did not know the phone number.

6.  Other than the July 1991 statement provided by the applicant, there were no other documents associated with the investigation regarding the applicant's use of the phone in his apartment.

7.  On 24 September 1991 the applicant acknowledged that he had been charged with violation of Article 134 (General Article encompassing all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital).  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  The applicant indicated in his request for discharge that he understood that if his discharge request was approved, that he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  He further acknowledged that he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs], that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

9.  Members of the applicant’s chain of command recommended his request be approved and that he be discharged under other than honorable conditions.  The separation authority approved the applicant’s request for discharge for the good of the service and directed that he receive an under other than honorable conditions discharge in accordance with chapter 10 of Army Regulation 635-200.  The applicant was reduced to the lowest enlisted grade of private/pay grade E-1 and discharged accordingly on 17 October 1991.  He had 8 years, 1 month, and 25 days of creditable active Federal service.  The reason for his separation was recorded as "for the good of service-in lieu of court-martial" and he was assigned a separation program designator code (SPD) code of KFS and an RE code of RE-3.  

10.  The statement submitted by the applicant's spouse notes, in effect, he is a good husband and father and has suffered greatly as a result of the discharge.  She notes he loves the military and never speaks ill of the Army.  She stated her husband took responsibility for her actions and that is something which should be admired.
11.  The statement from the retired Sergeant Major indicates he has known the applicant for more than 19 years and found him to be an exceptional leader that he made the decision to accept responsibility for the actions of his dependent knowing the consequences that would follow.  He states the applicant has never looked back or second guessed his decision; he knew it was the right thing to do. He stated that he wholeheartedly supported the applicant's action to have his discharge upgraded and hoped the board members would as well.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.

13.  Army Regulation 635-200 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.  

14.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the US Army Reserve.  Chapter 3 of this regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes, including Regular Army RE codes.

15.  Table 3-1 (U.S. Army reentry eligibility codes), of Army Regulation 601-210 states that RE-4 applies to persons separated from last period of service with a non-waivable disqualification.

16.  Army Regulation 635-5-1 (Separation Program Designated Codes), Table 2-3, states that the SPD code KFS denote discharge for the good of the service in lieu of court-martial. 

17.  The Army Human Resources Command publishes a cross-reference table of SPD and RE codes.  This cross-reference table in effect at the time showed that an SPD code of KFS is assigned an RE code of RE-3.
18.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, he/she will be reduced to the lowest enlisted grade. Board action is not required for this reduction. The commander having separation authority will, when directing a discharge under other than honorable conditions or when directed by higher authority, direct the Soldier to be reduced to pay grade E-1.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that the character of his discharge be upgraded, that his rank be restored, that the reason for his discharge and RE Code be changed  was carefully considered and determined to be without merit.

2.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would jeopardize his rights.

3.  The applicant's commitment to his family and his decision to support the actions of his girlfriend at his expense have also been noted.  His argument that he intended to pay the bill if he received one is not sufficiently mitigating to excuse his actions.  This is particularly true in view of the fact that he was a military policeman, with nearly 8 years of military service at the time, and he clearly knew that he was utilizing a phone service which he had not properly procured.  

4.  The applicant was properly reduced to pay grade E-1 as a result of his under other than honorable conditions discharge.

5.  Based upon the applicant's reason for discharge, he was properly given an RE code of 3.  

6.  Inasmuch as the applicant was discharged based on his own admission of guilt, the reason and authority for discharge is correct as currently constituted.  Therefore, based on the available records, there is no basis to grant the relief requested.

7.  In order to justify correction of a military record the applicant must satisfactorily show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit sufficient evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X_____  ___X____  ____X__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016979



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ABCMR Record of Proceedings (cont)                                         AR20080016979



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