RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           1 September 2005
      DOCKET NUMBER:  AR20050001373


      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. Wanda L. Waller               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Barbara Ellis                 |     |Member               |
|     |Mr. Richard Dunbar                |     |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 general discharge be upgraded to
honorable.

2.  The applicant states he was given a general discharge because he was
charged with a felony crime in a civil court.

3.  The applicant provides two court orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 October 1980.  The application submitted in this case is
dated 5 January 2005.

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.  Having prior active and inactive service in the Army National Guard,
the applicant enlisted in the Regular Army on 15 November 1966.  He served
two tours in Vietnam and remained on active duty through continuous
reenlistments.  He attained the rank of sergeant first class on 1 June
1977.  On 4 October 1977, the applicant reenlisted for a period of 3 years.

4.  On 4 August 1979, the applicant was arrested by civilian authorities
for burglary and sexual abuse of a child.  He was released to military
control on       6 August 1979.  In April 1980, the applicant was charged
with "Indecency with a child (sexual contact)" and received 5 years
probation in June 1980 in lieu of 4 years of civilian confinement.

5.  The applicant's request for reenlistment on 27 August 1980 was
disapproved on 3 September 1980 and a bar to reenlistment was initiated on
5 September 1980.

6.  On 2 October 1980, a bar to reenlistment was imposed against the
applicant for his off duty conduct during his last enlistment which
included a civilian incident involving indecency with a 12 year old girl
and a 1978 toluene sniffing incident.  The applicant elected to submit a
statement in his own behalf and stated that, "This Bar to Reenlistment is
signed with the understanding that I, [the applicant's rank and name], will
be permitted to extend my current enlistment to allow me combined active
and reserve duty of twenty (20) years IAW [in accordance with] AR [Army
Regulation] 140-1.  The necessary extension will be until 2 March 1981."

7.  On 30 September 1980, the separation authority determined the
applicant's characterization of service to be general.

8.  On 3 October 1980, the applicant was discharged with a general
discharge under the provisions of Army Regulation 635-200, chapter 2, for
completion of required service.  He had completed 14 years, 7 months, and
19 days of creditable active service.

9.  On 1 July 1982, the Army Discharge Review Board voted 4-to-1 to deny
the applicant's request for an honorable discharge.

10.  In support of his claim, the applicant provided two court orders,
dated
13 August 1985 and 13 September 1985.  These court orders state he
satisfactorily fulfilled the conditions of probation imposed against him
and that his probation expired on 19 June 1985.  Both court orders state,
in pertinent part, "It is the order of the court that the judgement of
conviction entered in said cause be and is hereby set aside and the
indictment against said defendant be and the same is hereby dismissed."

11.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 2, in effect at the time,
provided, in pertinent part, for the discharge or release from active duty
upon termination of enlistment, and other periods of active duty or active
duty for training.

12.  Army Regulation 601-280 prescribes the eligibility criteria and
options available in the Army Reenlistment Program.  Chapter 6 of that
regulation provides for barring from reenlistment individuals whose
continued active duty is not in the best interest of the military service.
This chapter specifies that bars will be used when immediate administrative
discharge from active service is not warranted.  Examples of rationale for
reenlistment disqualification include, but are not limited to, absent
without leave, indebtedness, recurrent nonjudicial punishment, slow
promotion progression, no demonstrated potential for future service, and
substandard performance of duties.

13.  Chapter 14 of Army Regulation 635-200, in effect at the time, provided
for separating members for misconduct which included conviction by civilian
court.  A discharge under other than honorable conditions is normally
appropriate for a soldier discharged under this chapter.

14.  Army Regulation 635-200, paragraph 3-7, provides that an honorable
discharge is a separation with honor and entitles the recipient to benefits
provided by law.  The honorable characterization is appropriate when the
quality of the member’s service generally has met the standards of
acceptable conduct and performance of duty for Army personnel (emphasis
added), or is otherwise so meritorious that any other characterization
would be clearly inappropriate.  Whenever there is doubt, it is to be
resolved in favor of the individual.  Paragraph 3-5b of this regulation
states that the quality of service of a Soldier on active duty or active
duty training is affected adversely by conduct that is of a nature to bring
discredit on the Army or is prejudicial to good order and discipline,
regardless of whether the conduct is subject to the Uniform Code of
Military Justice jurisdiction. Characterization may be based on conduct in
the civilian community; the burden is on the Soldier to demonstrate that
such conduct did not adversely affect his or her service.

15.  Paragraph 1-1 of Army Regulation 140-1 (Mission, Organization, and
Training) states that this regulation provides policy guidance on the
mission, organization, and training of the U.S. Army Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was an experienced Soldier who committed serious criminal
offenses while in the Army.  However, based on his record of service during
his last enlistment, it appears his chain of command did not elect to
separate him by way of an administrative board (Army Regulation 635-200,
chapter 14, for misconduct due to conviction by civil court) and allowed
him to terminate his service at his expiration term of service.  The bar to
reenlistment was accomplished in compliance with applicable regulations
with no indication of procedural errors which would tend to jeopardize his
rights.  Based on the foregoing, his record of service did not meet the
standards of acceptable conduct and performance of duty for Army personnel.
 Therefore, the applicant's record of service is insufficiently meritorious
to warrant an honorable discharge.

2.  Records show the applicant should have discovered the alleged injustice
now under consideration on 3 October 1980; therefore, the time for the
applicant to file a request for correction of any injustice expired on 2
October 1983.  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

SK_____  BE______  RD______  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.



            __Stanley Kelley_________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001373                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050901                                |
|TYPE OF DISCHARGE       |GD                                      |
|DATE OF DISCHARGE       |19801003                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 2                    |
|DISCHARGE REASON        |Completion of required service          |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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