RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 August 2005
      DOCKET NUMBER:  AR20040009849


      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             |
|     |Mr. Eric S. Moore                 |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. James B. Gunlicks             |     |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 DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show his rank/pay
grade as E-4.

2.  The applicant states, in effect, that his discharge was upgraded by the
Army Discharge Review Board (ADRB).  He now has a new DD Form 214 and would
like for his rank to be corrected.

3.  The applicant provides a copy of ADRB's decision letter, dated 28 May
2004.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 November 2002, the date of his separation from active duty.
The application submitted in this case is dated 10 November 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.  Prior to the enlistment under review, the applicant served in the
Regular Army from 13 March 1997 to 8 December 1999.  He was trained in
military occupational specialty (MOS) 14R (Sight Forward Heavy Crewmember).


4.  Evidence of record shows that the applicant was charged with two
specifications of anal sodomy with his spouse; two specification of oral
sodomy with his spouse; four specifications of unlawful assault upon his
spouse; two specifications of willfully disobeying a lawful command from a
CPT; one specification of willful damage to government property; and two
specifications of disorderly conduct.

5.  On 23 October 2002, the applicant consulted with legal counsel and
voluntarily requested, in writing, discharge under the provisions of
Chapter 10, Army Regulation 635-200 in lieu of trail by court-martial.  In
this request, the applicant admitted guilt to the offense, or a lesser
included offense.  Further, the applicant indicated that he understood that
he could receive an under other than honorable conditions discharge and
that the discharge would have a significant effect on eligibility for
veteran's benefits.  The applicant did not submit a statement in his own
behalf.

6.  The unit and intermediate commander recommended approval of the
discharge.  The appropriate authority approved the applicant's request and
directed that he be discharged under other than honorable conditions and
directed the reduction of the applicant to the lowest enlisted rank.

7.   On 22 November 2002, the applicant was discharged.  At the time of
discharge, the applicant had completed 2 years, 11 months, and 15 days of
active military service during the period under review.  The applicant had
5 years, 8 months, and 10 days of total military service.

8.  On 20 May 2004, the ADRB considered the applicant's request to upgrade
his discharge.  The ADRB carefully examined the applicant's record of
service during the period of enlistment under review and heard his
testimony.  There was a full consideration of all faithful and honorable
service as well as the alleged infractions of discipline, the extent
thereof, and the seriousness of the offenses.  The ADRB noted, from the
evidence of record, that on the same day of the applicant's discharge under
the provisions of Chapter 10, appropriate authority determined that the
preponderance of the charges against the applicant were unsupported by the
available evidence and directed that charges be dismissed without prejudice
to the applicant.  In view of the foregoing, the ADRB determined the
discharge was and is inequitable.  Accordingly, the ADRB voted to grant
full relief in the form of an upgrade of characterization of service to
fully honorable and a change to the narrative reason for separation to
Secretarial Authority.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) 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 submit a request for a
discharge for the good of the service in lieu of trial by court-martial.
The requests may be submitted at any time after charges have been preferred
and must include the individual's admission of guilt. Army policy states
that although an honorable or general discharge is authorized, a discharge
under other than honorable conditions is normally considered.



10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides
that when the separation authority determines that a Soldier is to be
discharged from the Service under other than honorable conditions, the
Soldier will be reduced to the lowest enlisted grade (E-1).

11.  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.  The U.S. Court of Appeals, observing
that applicants to the ADRB are by statute allowed 15 years to apply there,
and that the ABCMR's exhaustion requirement (AR15-185, paragraph 2-4),
effectively shortens that filing period, has determined that the 3 years
limit on filing to the ABCMR should commence on the date of final action by
the ADRB.  In complying with this decision, the ABCMR has adopted the
broader policy of calculating the 3-year time limit from the date of
exhaustion in any case where a lower level administrative remedy is
utilized.

DISCUSSION AND CONCLUSIONS:

1.  The date of application to the ABCMR is within three years of the
decision of the Army Discharge Review Board; therefore, the applicant has
timely filed.

2.  Records show that the applicant was discharged from the Army on
      22 November 2002 under the provisions of Chapter 10, Army Regulation
635-200 in lieu of trial by court-martial, and reduced to the grade of E-1.

3.  Records show that on the same day of the applicant's discharge an
appropriate authority determined that the charges against the applicant
were unsupported by the evidence so the charges were dismissed without
prejudice to the applicant.

4.  On 20 May 2004, the ADRB determined that the discharge was inequitable.
 Based on that determination, the ADRB upgraded the applicant's
characterization of service to fully honorable and changed his narrative
reason for separation to secretarial authority.

5.  Records show that the applicant was reduced to the rank/pay grade of E-
1 based on his discharge from the Service under other than honorable
conditions. However, with the upgrading of the applicant's discharge his
rank/pay grade should be corrected to show E-4. Therefore, the applicant
rank/pay grade should be corrected to show rank/pay grade E-4.


BOARD VOTE:

___mm__  ___jbg __  __jtm ___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
advancing the applicant to the rank of specialist/pay grade E-4 and by
issuing him a corrected DD Form 214 to show this correction.




                                  _        Melvin H. Meyer_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040009849                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/08/16                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |133.000                                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]