RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040011679


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 (DD) be upgraded
and that he be entitled to a medical retirement.

2.  The applicant states, in effect, that his DD should be upgraded and
that he should be entitled to a medical retirement.

3.  The applicant provides two character reference letters in support of
his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The Disabled American Veterans, as counsel for the applicant, requests
that his DD be upgraded.

2.  Counsel requests that based on the applicant's contentions, as well as
an overview of the available records, that the Board comply with the
applicant's request.  It is important that the Board review all pertinent
evidence in this case to include several character reference statements.
Although infractions did constitute military misconduct, the applicant
served his time.  Therefore, counsel humbly requests that any and all
reasonable doubt be resolved in favor of the applicant and that he be
granted the benefit sought.  Counsel asks for the Board's mercy and
sympathetic consideration of all the evidence of record used in rendering a
fair and impartial decision.

3.  Counsel provides no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 19 October 2001, the date of his discharge.  The application
submitted in this case is dated 15 November 2004, but was not received for
processing until 30 December 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.  The applicant’s military records show he entered AD on 13 October 1981,
as a light weapons infantryman (11B), with prior military service.  He
continued to serve through a series of continuous reenlistments.  He was
promoted to sergeant first class (SFCE-7) effective 1 July 1994.

4.  At a general court-martial on 3 March 1997, the applicant entered mixed
pleas to numerous offenses under the UCMJ.  He was found guilty of three
specifications of maltreatment of a subordinate, one specification of
adultery, two specifications of indecent assault, three specifications of
indecent exposure, four specifications of communicating indecent language,
and two specifications of obstruction of justice.  His sentence consisted
of a reduction to pay grade E-1, a forfeiture of all pay and allowances,
confinement for 42 months, and a DD.  The convening authority approved the
sentence.

5.  On 12 January 1999, the Army Court of Criminal Appeals (ACCA) corrected
General Court-martial Orders Number 10, Headquarters, 21st Theater Army
Area Command, Unit 23203, dated 20 June 1997, to reflect that the offense
of specification 1 of Charge IV occurred in September 1996 as apposed to
8 June 1996.  On 20 January 1999, ACCA affirmed the findings of guilty and
the sentence.

6.  On 25 August 2000, the United States Court of Appeals for the Armed
Forces (CAAF) affirmed the findings and sentence as provided by the
convening authority.

7.  On 8 November 2000, General Court-Martial Order Number 236 was
published.  This order finally affirmed the applicant's sentence, and that
portion of the sentence pertaining to confinement having been served,
ordered the DD executed.

8.  On 19 October 2001, the applicant was discharged from the Army pursuant
to the sentence of a general court-martial and was issued a DD.  He had a
total of 18 years, 4 months, and 3 days of creditable service.

9.  There is no evidence in the applicant's service record to show, and the
applicant provided none to show that he requested a separation medical
examination and his medical records are unavailable for review.

10.  The character reference letters provided by the applicant attest to
his post- discharge character, honesty, dedication, and strong relationship
with God.

11. The applicant’s case is ineligible for review by the Army Discharge
Review Board (ADRB) due to his conviction and discharge pursuant to the
sentence of a general court-martial.

12.  The applicant has provided no evidence that he was unfit to perform
the duties of his office, rank and pay grade, and rating, due to physical
disability reasons.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-10 of that regulation
provides that a Soldier will be given a dishonorable discharge pursuant
only to an approved sentence of a general court-martial, after completion
of appellate review and after affirmation of the sentence imposed.

14.  Title 10, United States Code, section 1552, as amended, does not
permit any redress by this Board which would disturb the finality of a
court-martial conviction.  The Board is empowered to address the punishment
and/or the characterization of service resulting from a court-martial
conviction.  The Board may elect to change the punishment and/or the
characterization of service if clemency is determined to be appropriate. 
Clemency is an act of mercy, or instance of leniency, to moderate the
severity of the punishment imposed.

15.  Title 10, United States Code, chapter 61, provides disability
retirement or separation for a member who is physically unfit to perform
the duties of his/her office, rank, grade, or rating because of a
disability incurred while entitled to basic pay.

16.  Army Regulation 635-40 establishes the Army physical disability
evaluation system and sets forth policies, responsibilities, and procedures
that apply in determining whether a Soldier is unfit because of physical
disability to reasonably perform the duties of his office, grade, rank, or
rating.  It provides for medical evaluation boards, which are convened to
document a Soldier’s medical status and duty limitations insofar as duty is
affected by the Soldier’s status.  A decision is made as to the Soldier’s
medical qualifications for retention based on the criteria in AR 40-501,
chapter 3.  If the MEB determines the Soldier does not meet retention
standards, the board will recommend referral of the Soldier to a PEB.






17.  Physical evaluation boards are established to evaluate all cases of
physical disability equitability for the Soldier and the Army.  It is a
fact finding board to investigate the nature, cause, degree of severity,
and probable permanency of the disability of Soldiers who are referred to
the board; to evaluate the physical condition of the Soldier against the
physical requirements of the Soldier’s particular office, grade, rank or
rating; to provide a full and fair hearing for the Soldier; and to make
findings and recommendation to establish eligibility of a
Soldier to be separated or retired because of physical disability.

18.  Paragraph 4-3, of the same regulation, provides that an enlisted
Soldier may not be referred for, or continue, physical disability
processing when action has been started under any regulatory provision
which authorizes a characterization of service of under other than
honorable conditions.  The commander exercising general court-martial
jurisdiction over the Soldier may abate the administrative separation. This
authority may not be delegated.  A copy of the decision, by the general
court-martial convening authority (GCMCA), must be forwarded with the
disability case file to the physical evaluation board.  A case file may be
referred in this way if the GCMCA finds that the disability is the cause,
or a substantial contributing cause, of the misconduct that might result in
a discharge under other than honorable conditions, or if other
circumstances warrant disability processing instead of alternate
administrative action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was found guilty by a
general court-martial of maltreatment of a subordinate, of adultery, of
indecent assault, of indecent exposure, of indecent language, and of
obstructing justice.

2.  Trial by court-martial was warranted by the gravity of the offenses
charged.
Conviction and discharge were effected in accordance with applicable law
and regulation.

3.  The sentence of the general court-martial included the applicant's
discharge with a DD.

4.  The evidence shows that the applicant's sentence was affirmed and
ordered executed.





5.  The applicant contends that he should be entitled to a medical
discharge.  The applicant's medical records are unavailable for review and
there is no evidence to show that he requested a separation medical
examination prior to his general court-martial.  There is no evidence, and
the applicant has provided none, to show that he had entered the physical
disability system before charges were preferred against him.
Notwithstanding this, he was, when charges were brought against him,
ineligible to continue with processing in the physical disability system
for a medical disability separation.

6.  There is no evidence, and the applicant has provided none to show, that
he was found unfit to perform his duties due to a disability incurred while
entitled to basic pay.  Therefore, there is no basis upon which to
attribute his separation on physical disability reasons.  The evidence
clearly shows he was discharged pursuant to the sentence of a general court-
martial.  He had completed a total of 18 years, 4 months, and 3 days of
creditable service.

7.  The applicant's supporting character references were considered;
however, these are not sufficiently mitigating to warrant an upgrade of his
discharge.

8.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 October 2001; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 18 October 2004.  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

__LD____  __REB__  _LF    ___  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.




                                  _      Ronald E. Blakely___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011679                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050927                                |
|TYPE OF DISCHARGE       |DD                                      |
|DATE OF DISCHARGE       |20011019                                |
|DISCHARGE AUTHORITY     |AR 636-200, chapter 3                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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