RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           17 August 2004
      DOCKET NUMBER:  AR2004101750


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Ms. Eloise C. Prendergast         |     |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 the DA Form 4833 (Commander's
Report of Disciplinary or Administrative Action) dated 19 July 1984 be
removed from the U. S. Army Crime Records Center's files or that the entry
in the Remarks section of the form be deleted.

2.  The applicant states that a different typewriter was used to add the
sentence, "SM was issued a Letter of Reprimand on 21 November 1984" to the
Remarks section of the DA Form 4833.  This implies that the applicant
received the letter of reprimand (LOR) when in fact he never received a
LOR.  The addition of that sentence at a later date defaces an official
Army document and constitutes an offense in and of itself.  No action was
taken against him.  In fact, he served with distinction until he was
released from active duty.  The entry is unjust and illegal and prejudicial
to his record.  There is no DA Form 4833 or LOR in his personnel files.

3.  The applicant provides a DD Form 4833 dated 19 July 1984; a letter from
the Department of the Army Suitability Evaluation Board (DASEB) dated 1
July 2003; and a letter from the U. S. Army Criminal Investigation Command
(USACIDC) to the Department of Veterans Affairs, Inspector General, Office
of Investigations dated 13 March 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 15 April 1985, the date of the applicant's release from
active duty.  The original application submitted in this case (which was
administratively closed) was dated 22 July 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.  After having had prior service in the U. S. Navy Reserve, the applicant
entered active duty as a U. S. Army Reserve Medical Corps Major on 15 April
1980.  He was promoted to Lieutenant Colonel on 3 March 1982.

4.  A CID Report of Investigation (ROI) dated 14 November 1983 was prepared
concerning an incident that occurred on 15 September 1983 at the Campbell
Barracks, Heidelberg, Germany Health Spa locker room.  The ROI indicated
that the investigation revealed the applicant grabbed the penis of a
Sergeant First Class and said, "Let your friendly psychiatrist show you
what is right."  The investigation also revealed that, prior to that
assault, the applicant made a suggestion to the Sergeant First Class
regarding homosexual relations.

5.  A DA Form 4833 was prepared on 19 July 1984 for the 15 September 1983
incident.  The DA Form 4833 indicated that administrative action was taken
against the applicant.  The Remarks section of that form indicated he was
issued a LOR on 21 November 1984.

6.  In February 1985, the applicant requested unqualified resignation to
take advantage of civilian practice opportunities.  On 15 April 1985, he
was honorably discharged.  He accepted appointment in the U. S. Army
Reserve.  He was promoted to Colonel on 2 March 1987.  Around April 2002,
he was transferred to the Retired Reserve.

7.  Neither a copy of the DA Form 4833 nor a LOR is filed in the
applicant's Official Military Personnel File (OMPF).

8.  Army Regulation 190-45 (Law Enforcement Reporting) states that the DA
Form 4833 is used to record actions taken against identified offenders.
The installation provost marshal initiates this document and is responsible
for its distribution.  The unit commander will complete the form within 45
days of receipt and check what action has been taken to include the
sentence, punishment, or administrative action imposed.  If the commander
cannot complete the form within 45 days, a written memorandum will explain
the circumstances.  The original of the DA Form 4833 is sent to the
Director, U. S. Army Crime Records Center for filing.

9.  Army Regulation 640-10 (Individual Military Personnel Records), in
effect at the time, did not provide for the filing of the DA Form 4833 in
the OMPF.

10.  Army Regulation 600-37 (Unfavorable Information), states that a
general officer may direct the filing of an administrative LOR for a
commissioned officer in the Military Personnel Records Jacket (MPRJ) for a
period not to exceed 3 years or until reassignment or on the performance
fiche of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  It would have been normal procedure for a different typewriter to have
entered information in the Remarks section of the DA Form 4833.  The form
is initiated by the provost marshal's office but the applicant's commander
would have entered the administrative action taken information.  The time
discrepancy between the date of the DA Form 4833 and the date the form
indicated a LOR was issued (greater than 45 days) may have been explained
at the time as required.  The regulation does not require that the letter
of explanation be filed.

2.  The DA Form 4833 would not have been authorized for filing in the
applicant's OMPF.  The guidance is to file it at the U. S. Army Crime
Records Center.

3.  The fact that a LOR is not filed in the applicant's OMPF is noted.  His
subsequent good service both on active duty and in the U. S. Army Reserve
is noted.  However, a LOR may have been issued for filing only in his MPRJ.
 In that case, it would have been destroyed when he separated.

4.  At this point in time it cannot be determined that a LOR was not
issued.  In the absence of evidence to the contrary, it is presumed that
the DA Form 4833 was properly prepared and accurately reflected
administrative action taken against the applicant for the incident recorded
on the CID ROI.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 April 1985, the date he separated
from active duty; therefore, the time for the applicant to file a request
for correction of any error or injustice expired on 14 April 1988.
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

__sp____  __rjo___  __ecp___  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.




            ___Shirley Powell_____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004101750                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040817                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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