RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          14 September 2004
      DOCKET NUMBER:  AR2004101112


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Karen A. Heinz                |     |Member               |
|     |Mr. Robert L. Duecaster           |     |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 discharge under other than
honorable conditions, be upgraded to an honorable or a general discharge.

2.  The applicant states, in effect, that he believes that the type of
discharge that he received was unjust.  He states that there was an
uncorroborated and unsubstantiated allegation of a sexual remark being made
by him that was never proven and that he was forced to take a discharge
without legal counsel or representation.  He states that if he had proper
legal representation and counsel at the time of the alleged incident, he
would not have accepted a discharge without a fair trial and that he has
led an exemplary life since his discharge from the military.

3.  The applicant provides in support of his application, a copy of a
criminal background check that he ordered dated 10 April 2003; a copy of
his credit report dated 4 March 2003; a letter from his employer dated 3
January 2003, attesting to his good work record; copies of several
documents that are maintained in his Official Military Personnel File; and
a copy of his resume.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice, which
occurred on 30 July 1987.  The application submitted in this case is dated
16 April 2003.

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.  On 10 March 1986, he enlisted in the Army in Jacksonville, Florida, for
4 years, in the pay grade of E-1.  He successfully completed his training
as a dental specialist.  On 10 July 1986, he was promoted to the pay grade
of E-2 and on 23 July 1986, he was transferred to Germany.

4.  The applicant was in Germany and was assigned to the 92nd Medical
Detachment, when a military police (MP) investigation was initiated on 27
March 1987, regarding allegations of him soliciting another Soldier of the
same sex to commit sodomy and conspiracy to make false sworn statements.
The investigation revealed that on 6 March 1987, the applicant allegedly
solicited a homosexual act from another Soldier who reported the incident
to his chain of command.  In his report, the investigating officer (IO)
stated that, in an attempt to disclaim the allegations, the applicant
produced another Soldier as a witness on his behalf.  Further investigation
revealed that the applicant unlawfully solicited his witness to commit the
offense of false swearing and that he conspired to produce written sworn
statements from his witness and himself claiming that the incident never
occurred.  The report of investigation reveals that the applicant reported
to the MP investigator at which time he was apprehended and advised of his
legal rights, which he chose to waive.  The applicant later invoked his
rights during questioning.

5.  On 6 May 1987, the applicant was notified that charges were pending
against him for conspiring with another Soldier to make a false official
statement; for making a false official statement; for signing a false
official statement; for willfully disobeying an order to stay away from his
accuser; for soliciting another Soldier to commit sodomy; and for
wrongfully threatening the reputation of another his accuser.  He
acknowledged receipt of the notification on 8 June 1987.  After consulting
with counsel, he submitted a request for discharge under the provisions of
Army Regulation 635-200, chapter 10, for the good of the service in lieu of
trial by court-martial.  In his request for discharge, he admitted guilt to
the charge of signing a false official statement.

6.  The appropriate authority approved the request for discharge on 27 June
1987.  Accordingly, on 30 July 1987, the applicant was discharged under
other than honorable conditions, under the provisions of Army Regulation
635-200, chapter 10, for the good of the service in lieu of trial by court-
martial.  He had completed 1 year, 4 months and 21 days of total active
service.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

8.  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
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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, the evidence of
record shows that although he only admitted guilt to signing a false
official statement, the allegations were investigated and according to the
IO, they were substantiated.  His contention regarding legal counsel is
without merit.  It was only after he consulted with counsel that he decided
to submit a request for discharge in lieu of trial by court martial.

4.  His request for a chapter 10 discharge, even after appropriate and
proper consultation with a military lawyer, tends to show he wished to
avoid the
court-martial and the punitive discharge that he might have received.

5.  The applicant’s post service conduct has been noted.  However,
considering the nature of his offenses, it does not appear that the type of
discharge that he received is too severe.

6.  In order to justify correction of a military record the applicant must
show 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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 July 1987; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 July 1990.  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

__mdm___  __kah___  __rld___  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.



                                  Mark D. Manning
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101112                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040914                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19870730                                |
|DISCHARGE AUTHORITY     |AR 635-200/CHAPTER 10                   |
|DISCHARGE REASON        |689/FOR THE GOOD OF THE SERVICE         |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  728  |144.7610.0000/FALSE STATEMENTS          |
|2.  729                 |144.7700.0000/HOMOSEXUALITY             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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