RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           12 April 2005
      DOCKET NUMBER:  AR20040002767


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John N. Slone                 |     |Chairperson          |
|     |Ms. Shirley L. Powell             |     |Member               |
|     |Mr. Curtis Greenway               |     |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, an upgrade of the characterization
and a change to the narrative reason for his under other than honorable
conditions (UOTHC) discharge.

2.  The applicant states, in effect, that he was coerced by the Criminal
Investigation Division (CID) to sign a prepared statement that resulted in
the court-martial charges.  He claims that his requests for an
administrative review board were ignored and had been given this
opportunity he may have been retained.  He further states that he was never
informed that he would receive an UOTHC discharge until the day of
discharge.  He claims it was always his intent to be a career Soldier and
we are all human and make mistakes.  He states that since his discharge, he
has been active in his church and in community affairs and completed an
Associate and Bachelor Degrees and almost finished the requirements for a
master’s degree.  He states that he obtained a waiver to enter the Army
National Guard (ARNG) and it has been suggested that he may best use his
skills and training as a commissioned officer.  For this reason, he is
attempting to upgrade his discharge.

3.  The applicant provides a copy of his separation document (DD Form 214),
six character references, copies of his Associate and Bachelor Degrees and
a transcript of master’s degree courses he has completed in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 28 March 1997.  The application submitted in this case is
dated
9 June 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 limitation 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 record shows that he enlisted in the Regular Army and
entered active duty on 1 September 1988.  He was trained in, awarded and
served in military occupational specialty (MOS) 75H (Personnel Specialist).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
during his tenure on active duty the applicant earned the Army Service
Ribbon, National Defense Service Medal, Army Good Conduct Medal, Air
Assault Badge, Army Commendation Medal and Army Achievement Medal (2).
There are no documented acts of valor in the record.

5.  On 19 May 1995, a Charge Sheet (DD Form 458) was prepared preferring
three court-martial charges containing a total of five specifications of
violating Articles 107, 132 and Article 134 of the Uniform Code of Military
Justice (UCMJ). Charge I was one specification of violating Article 107 by
knowingly making a false statement with the intent to deceive.  Charge II
contained two specifications of violating Article 132 by preparing false
and fraudulent claims.  Charge III was for two specifications of violating
Article 134 by wrongfully soliciting another Soldier to conspire to make a
false claim and willfully and maliciously setting fire to an automobile
with the intent to defraud the United States Government.

6.  On 7 March 1997, the applicant consulted with legal counsel and was
advised of the basis for the contemplated trial by court-martial, the
maximum permissible punishment authorized under the UCMJ, the possible
effects of an UOTHC discharge, and of the procedures and rights that were
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.

7.  In his request for discharge, the applicant also indicated that he
understood that by requesting discharge, he was admitting guilt to the
charges against him, or of a lesser included offense, that also authorized
the imposition of a bad conduct or dishonorable discharge.  He further
acknowledged he understood that if his discharge request was approved, 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 Federal and State law.

8.  On 21 March 1997, the separation authority approved the applicant’s
request for discharge and directed that he receive an UOTHC discharge.  On
28 March 1997, the applicant was discharged accordingly.  The DD Form 214
he was issued confirms he was separated under the provisions of chapter 10,
Army Regulation 635-200, in lieu of trial by court-martial.  This document
further shows he completed a total of 6 years, 9 months and 20 days of
active military service.
9.  On 8 April 1998, the Army Discharge Review Board (ADRB) voted to deny
the applicant’s request for an upgrade of his discharge after concluding
that his discharge was proper and equitable.

10.  The applicant provides six character references that attest to his
good character and post service conduct.  He also provides evidence of his
educational achievements subsequent to his discharge.

11.  Army Regulation 635-200 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 at
any time after the charges have been preferred, submit a request for
discharge for the good of the service in lieu of trial by court-martial.  A
discharge under other than honorable conditions is normally considered
appropriate.

12.  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 this Board's exhaustion requirement (Army Regulation 15-185,
paragraph 2-8), effectively shortens that filing period, has determined
that the 3 year limit on filing to the ABCMR should commence on the date of
final action by the ADRB.  In complying with this decision, the Board 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 applicant’s contentions that he was coerced into making a personal
statement that resulted in the court-martial charges against him, that he
was denied an administrative separation board, that his post service
conduct, achievement support an upgrade of his discharge and the supporting
documents he provided were carefully considered.

2.  However, the evidence of record confirms the applicant was charged with
the commission of an offense punishable under the UCMJ with a punitive
discharge. After consulting with defense counsel, the applicant voluntarily
requested discharge from the Army in lieu of trial by court-martial.  In
his request for discharge, he admitted guilt to the charges 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.
3.  Notwithstanding his admirable post service conduct, it is concluded
that the characterization and reason for the applicant’s discharge were
warranted based on the nature of the charges brought against him.  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.

4.  Records show the applicant exhausted his administrative remedies in
this case when his case was reviewed by the ADRB on 8 April 1998.  As a
result, the time for him to file a request for correction of any error or
injustice to this Board expired on 7 April 2001.  However, he 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JNS _  ___CG __  __SLP __  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.




            ____John N. Slone  _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040002767                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/12                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1997/05/19                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |In Lieu of CM                           |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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