RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 December 2005
      DOCKET NUMBER:  AR20050003470


      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. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. James B. Gunlicks             |     |Member               |
|     |Mr. Scott W. Faught               |     |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 bad conduct discharge (BCD) be upgraded
and that his reentry (RE) Code be changed to a more favorable code.

2.  The applicant states although he was acquitted of one specification of
maltreatment and half of the specifications under Article 134, Uniform Code
of Military Justice (UCMJ), that he was convicted of an unreasonable
multiplication of charges and the judge's decision was based solely on the
accuser's written statements.

3.  The applicant provides no documentation in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 April 1995, the date of his discharge.  The application
submitted in this case is dated 23 February 2005, but was received on
4 March 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.  The applicant's military records show he entered active duty on 15 June
1982, as a personnel administrative specialist (75B).  He was promoted to
staff sergeant (SSG/E-6) effective 1 August 1989.

4.  At a special court-martial on 16 November 1993, the applicant entered
mixed pleas to numerous offenses under the UCMJ.  He was found guilty of
maltreatment of subordinate on 2 June 1993 (Charge II/specification 1), of
indecent assault on 2 June 1983 (Charge III/specification 1), and of
indecent assault on 18 May 1993 (Charge III/specification 3).  He was found
not guilty
of attempted indecent assault on 16 June 1993 (Charge I/ specification 1),
of
maltreatment of subordinate on 16 June 1993 (Charge II/specification 2), of





maltreatment of subordinate on 1 April 1993 (Charge II/specification 3) and
of indecent assault on 18 May 1993 (Charge III/specification 2).  His
sentence consisted of a reduction to the lowest enlisted grade, to forfeit
$500.00 pay per month for 6 months, confinement for 2 months, and a BCD.
The sentence was adjudged on 16 November 1993.  The convening authority
approved the sentence on 3 March 1994.

5.  On 18 February 1993, the applicant requested that the court look
carefully into each of his charges and the accuser's written statements.
On 26 April 1994, the applicant petitioned the United States Army Court of
Military Review (ACMR) for a review of his case.

6.  On 26 April 1994, the case was forwarded to the ACMR for review.  The
judge had assigned no errors and submitted the applicant's case upon its
merits and stated that the sentence should be affirmed.

7.  On 6 May 1994, the ACMR affirmed the findings and sentence.

8.  On 27 February 1995, Special Court-Martial Order Number 6 was
published. The provisions of Article 71(c) having been complied, the BCD
was ordered executed.  This order announced that the confinement had been
served.

9.  On 12 April 1995, the applicant was discharged from the Army pursuant
to the sentence of the special court-martial and was issued a BCD.  He had
completed 12 years, 8 months, and 11 days of creditable service.  He was
issued a separation program designator (SPD) code of "JJD" and a RE Code of
"4."

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an
upgrade of his discharge on 15 May 1995.  The ADRB determined that his
discharge was proper and equitable and denied his request on 26 June 1997.

11.  The applicant reapplied to the ADRB for an upgrade of his discharge on
18 September 2001.  The ADRB determined once again that the applicant was
properly discharged and denied his request on 8 February 2002.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Paragraph 3-11 of that regulation
provides that a soldier will be given a bad conduct discharge pursuant only
to an approved sentence of a general or special court-martial.  The
appellate review must be completed and the affirmed sentence duly executed.



13.  Army Regulation 635-200, paragraph 3-7, provides that a general
discharge is a separation from the Army under honorable conditions.  When
authorized, it is issued to a soldier whose military record is satisfactory
but not sufficiently meritorious to warrant an honorable discharge.  A
characterization of under honorable conditions may be issued only when the
reason for the soldier’s
separation specifically allows such characterization.

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.

15.  Pertinent Army regulations provide that prior to discharge or release
from active duty, individuals will be assigned reentry codes, based on
their service records or the reason for discharge.  Army Regulation 601-210
covers eligibility criteria, policies, and procedures for enlistment and
processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3
of that regulation prescribes basic eligibility for prior service
applicants for enlistment. That chapter includes a list of Armed Forces
reentry codes, including RA RE codes.

16.  RE–4 applies to persons not qualified for continued service by virtue
of being separated from the service with non-waivable disqualifications
such as persons discharged for the good of the service in lieu of trial by
court-martial.

17.  The SPD/RE Code Cross Reference Table, dated October 1999, provides
instructions for determining the RE code for Active Army Soldiers and
Reserve Component Soldiers separated for cause.  It also shows the SPD code
with a corresponding RE code and states that more than one RE code could
apply.  The Soldier’s file and other pertinent documents must be reviewed
in order to make a final determination.  The SPD code of "JJD" has a
corresponding RE code of "4."

18.  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.

19.  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.  The U.S. Court of Appeals, observing
that applicants to the Army Discharge Review Board (ADRB) are by statute
allowed 15 years to apply there, and that this Board's exhaustion
requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens
that filing period, has determined that the     3 year limit on filing to
the Army Board for Correction of Military Records (ABCMR) should commence
on the date of final action by the ADRB.  In complying with this decision,
the ABCMR has adopted the broader policy of calculating the 3-year time
limit from the date of exhaustion in any case where a lower level
administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant entered mixed pleas to
numerous offenses under UCMJ.  He was found guilty of maltreatment of
subordinate and indecent assault on two occasions.  He was found not guilty
of indecent assault on two occasion and maltreatment of subordinate on two
occasions.

2.  The applicant alleges that the judge's decision was based solely on the
accuser's written statement; however, the applicant has provided no
evidence, and there is none, to support his allegations.

3.  The applicant has provided no evidence to show that his discharge was
unjust at the time of his offense.  He has not provided evidence sufficient
to mitigate the character of his discharge.

4.  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.

5.   The applicant's RE Code "4" is consistent with the basis for his
separation and in this case there is no basis for changing the existing
code.

6.  Records show the applicant exhausted his administrative remedies in
this case when his case was last reviewed by the ADRB on 8 February 2002.
As a result, the time for the applicant to file a request to this Board for
correction of any error or injustice expired on 7 February 2005.  However,
the applicant did not file within the 3-year statute of limitations and has
not provided a compelling explanation or sufficient 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

_JBG___  _RTD___   _SWF____ 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.




                                  _____Richard T. Dunbar___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003470                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051208                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |19950412                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 3                   |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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