RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 MARCH 2005
      DOCKET NUMBER:  AR20040003333


      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. Deborah L. Brantley           |     |Senior Analyst       |

      The following members, a quorum, were present:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Susan Powers                  |     |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 that his dishonorable discharge be upgraded so
that he can receive benefits.

2.  The applicant states that his dishonorable discharge was based upon
“one instance” and that while the instance was “disturbing” it was the “one
and only time of any negative black marks on [his] otherwise exemplary
record.”

3.  The applicant states that he served in the Gulf War and was exposed to
low levels of chemical agents.  He states that he has been diagnosed as “bi-
polar” and is taking medication to control it.  He notes he was not taking
medication at the time he “committed the acts that [he] did which got [him]
court-martialed and another person hurt.”  He believes that there may be
some sort of correlation between his Gulf War experience “along with the
chemicals” and his committing his crime “which happened not long after I
returned.”

4.  The applicant states he had 10 years of outstanding service and that it
has been 10 years since his discharge.  He states that he lost a finger
while in the service and is unable to receive benefits for it or any other
service related benefits.

5.  The applicant provides no evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 14 April 1995.  The application submitted in this case is
dated
25 May 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.  Records available to the Board indicate that the applicant served an
initial period of active duty with the United States Marine Corps between
March 1984 and November 1986.  He was honorably discharged as a result of a
hardship.
4.  In July 1987 he enlisted in the Regular Army for a period of 3 years
and reenlisted for a period of 6 years in November 1989.

5.  The applicant was deployed to Southwest Asia in support of the Persian
Gulf War and was awarded an Army Commendation Medal as a result.  Prior to
that, in September 1990 he was awarded an Army Achievement Medal.  He had
also been awarded an Army Good Conduct Medal in July 1990.

6.  Performance evaluation reports rendered between August 1991 and August
1994 all indicated that the applicant was a successful Soldier.  In March
1993 and again in August 1994 he received performance evaluation reports
that indicated he was among the best qualified for promotion potential and
his senior raters placed him in the top block for both overall performance
and overall potential.  In June 1993 he successfully completed the Basic
Noncommissioned Officer Course and in October 1993 he was promoted to pay
grade E-6.

7.  In January 1995 the applicant was convicted by a general court-martial
of sodomy and five specifications of indecent acts with a female under 16
years of age and two specifications of indecent liberties upon a female
under 16 years of age.  According to the court-martial order, the incidents
all occurred between
1 January 1994 and 1 August 1994.  The applicant pleaded guilty to each
charge and specification.

8.  The applicant’s sentence included a dishonorable discharge, reduction
to pay grade E-1, and 25 years of confinement.  According to a statement
contained in the applicant’s file, a pretrial agreement was to suspend for
a period of 5 years any adjudged sentence to confinement.  On 21 March 1995
action was taken and the initial promulgating order was published.  On 27
March 1995 the applicant waived his right to appellant review.  On 7 April
1995 the sentence as approved and suspended by the convening authority was
approved and the dishonorable discharge was order executed.

9.  On 14 April 1995 the applicant was discharged.  At the time of his
separation he had just over 10 years of active Federal service, including
his years as a member of the United States Marine Corps.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant’s contention, his “crime” did not happen
shortly after his return from Southwest Asia.  In fact nearly 3 years
elapsed between the time he would have returned from Southwest Asia and
January 1994 when he first began committing his “crime” which continued
until August 1994.
2.  Additionally, it is noted that the applicant was able to continue to
perform his military duties in such a manner that he was promoted in 1993
and consistently received complementary performance evaluation reports.
The applicant’s record even shows that during the period he was committing
his “crime” that he was performing his duties so successfully that he
received a exceptional evaluation report ending in August 1994 which noted
that he was among the best Soldiers qualified for promotion.

3.  The fact that the applicant was able to successfully continue to
perform his military duties and be promoted, is evidence that he was
capable of honorable service.  He has failed to provide a convincing
argument regarding any correlation between his Gulf War experience and his
“crime.”

4.  The applicant’s dishonorable discharge was clearly appropriate
considering the conduct which was the basis for his court-martial.  There
is no evidence of any error or injustice and the fact that the applicant
may have had no other incidents of misconduct or that he had served
honorably for nearly 10 years is not sufficiently mitigating to justify
upgrading his discharge merely so he can receive veterans’ benefits.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 14 April 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
13 April 1998.  However, 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

___MM__  ___PM __  ___SP __  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.




                                  ______Melvin Meyer__________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040003333                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050329                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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