RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         14 DECEMBER 2004
      DOCKET NUMBER:  AR2004105049


      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. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Ms. Diane Armstrong               |     |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 record be corrected to show his rank
and pay grade as sergeant first class, E-7, respectively, with retroactive
pay and allowances.

2.  The applicant states in effect that a lieutenant colonel, pay grade O-
5, did not have the authority to reduce him.  Department of the Army had
that authority.  His reduction was unjust because he had 20 years of
service.  He also makes reference to retirement at highest grade held.

3.  The applicant provides copies of 1990 and 1991 letters of appreciation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 November 1991.  The application submitted in this case
is dated 18 February 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 enlisted in the Army in 1971 and remained on continuous
active duty until his retirement in 1991.  He was trained as a military
policeman and served in numerous locations throughout the world, to include
Hawaii, Fort Jackson, South Carolina, Fort McClellan, Alabama, Korea, Fort
Bliss, Texas, Fort Lewis, Washington, and Germany.  In 1977, as a result of
a Department of the Army directed program, he was reclassified and
retrained as a chaparral crewman.  He served as a recruiter and station
commander in the state of Washington from 1981 to 1986.  Thereafter, his
duties again were in the military police field.

4.  The applicant's awards include the Army Commendation Medal with first
oak leaf cluster, the Army Achievement Medal with first oak leaf cluster,
the Gold Recruiter Badge with Sapphire Achievement Star, and six awards of
the Army Good Conduct Medal.

5.  The applicant's evaluation reports prior to his 1987 court-martial were
generally excellent, if not outstanding.  His reports thereafter were
satisfactory, and on a few occasions outstanding.  His OMPF (Official
Military Personnel File) contains numerous letters of appreciation and
commendation.  He was promoted to sergeant first class on 22 August 1982.

6.  On 5 May 1987 the applicant, then assigned to the 630th Military Police
Company in Germany, was arraigned and tried by summary court-martial.  The
summary court-martial was a lieutenant colonel assigned to the 6th
Battalion, 10th Field Artillery.  The applicant was represented by civilian
counsel.  He pled guilty and was found guilty of two counts of maltreatment
of a female Soldier by sexually harassing her, and one count of committing
an indecent assault on her.
The court sentenced him to be reduced to the grade of E-6.  The convening
authority approved the sentence on 14 May 1987 and directed that it be
executed.  The applicant was reduced to staff sergeant, pay grade E-6 on
     14 May 1987.

7.  On 18 May 1987 a Judge Advocate General Corps officer of the 1st
Armored Division stated that he had reviewed the record of trial by court-
martial and  determined that the sentence was legal.

8.  On 15 December 1989 the applicant was barred from reenlistment under
the Department of the Army Qualitative Management Program (QMP).

9.  The applicant retired in the rank and pay grade of staff sergeant, E-6,
respectively on 30 November 1991.  He had 20 years and 28 days of active
military service.

10.  The Manual for Court-Martial (MCM) provides the rules that govern the
procedures and punishments in all courts-martial, and provides the
following definition of a military judge – the presiding officer of a
general or special court-martial detailed in accordance with Article 26.
Except as otherwise expressly provided, in the context of a summary court-
martial "military judge" includes the summary court-martial officer or in
the context of a special court-martial without a military judge, the
president.

11.  Rule 1301 of the MCM states that a summary court-martial is composed
of one commissioned officer on active duty.  Whenever practicable, a
summary court-martial should be an officer whose grade is not below
lieutenant of the Navy or Coast Guard or captain of the Army.  The maximum
penalty which can be adjudged in a summary court-martial if the accused is
not attached to or embarked in a vessel is confinement for 30 days,
forfeiture of two-thirds pay per month for one month, and reduction to the
lowest pay grade.  In the case of enlisted members above the fourth
enlisted pay grade, summary courts-martial may not adjudge confinement,
hard labor without confinement, or reduction except to the next pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's court-martial and conviction, with subsequent reduction
in grade was proper.  The summary court-martial had the authority to pass
the sentence adjudged.  There was no injustice.

2.  The letters that he submits with his request have been duly noted.
These letters, and his record of satisfactory service, both before and
after his court-martial, as evidenced by his evaluation reports, are
insufficient to grant him the relief requested.

3.  Consequently, his request to correct his record to show his rank and
pay grade as sergeant first class, E-7, with retroactive pay and
allowances, is denied.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 November 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    29 November 1994.  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

___JP___  ___LE __  ___DA  __  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.




                                  _____ Jennifer Prater________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR2004105049                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20041214                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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