RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          23 November 2005
      DOCKET NUMBER:  AR20050005130


      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. John Slone                    |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Mr. Larry Olson                   |     |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 discharge under other than honorable
conditions be upgraded.

2.  The applicant states the civilian conviction was dropped after he
complied with the judge’s orders.  He also contends that he needs medical
attention.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 1 November 1984.  The application submitted in this case is
dated 28 March 2004; however, the application was received in this office
on 7 April 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 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 on 29 December 1978 for a period of 3 years.  He
successfully completed One Station Unit Training in military occupational
specialty 11C (indirect fire infantryman).

4.  On 24 July 1984, the applicant was arrested and confined by civil
authorities pending civil charges.  On 13 August 1984, he was convicted of
lewd molestation upon a 4-year old female and was sentenced to a five year
suspended sentence. He was released by civil authorities on 13 August 1984.

5.  On 29 August 1984, nonjudicial punishment was imposed against the
applicant for being absent without leave (AWOL) from 13 August 1984 to
14 August 1984.  His punishment consisted of a forfeiture of pay, extra
duty, and restriction.

6.  On 5 October 1984, the applicant was notified of his pending separation
under the provisions of Army Regulation 635-200, chapter 14, for civil
conviction.

7.  On 5 October 1984, the applicant signed a statement wherein he
indicated that he did not intend to appeal the civil conviction, he waived
consideration of his case by a board of officers, he requested consultation
with counsel and he elected not to submit a statement on his own behalf.
He also indicated that he understood he might be discharged under
conditions other than honorable, that he might be ineligible for many or
all benefits as a veteran under both Federal and State law, and that he
might expect to encounter substantial prejudice in civilian life.

8.  On 5 October 1984, the applicant’s unit commander initiated action to
separate him from the service under the provisions of Army Regulation 635-
200, chapter 14, for misconduct due to conviction by civil court.  He based
his recommendation for separation on the applicant’s civil conviction.

9.  On 24 October 1984, the separation authority approved the
recommendation for discharge and directed the issuance of a discharge under
other than honorable conditions.

10.  Accordingly, the applicant was discharged with a discharge under other
than honorable conditions on 1 November 1984 under the provisions of Army
Regulation 635-200, chapter 14, for misconduct due to civilian conviction.
He had served 5 years, 9 months, and 5 days of total active service with 20
days of lost time due to civil confinement.

11.  There is no evidence that the applicant applied to the Army Discharge
Review Board for upgrade of his discharge within its 15-year statute of
limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, and convictions by civil authorities.
Action will be taken to separate a member for misconduct when it is clearly
established that rehabilitation is impracticable or is unlikely to succeed.
 A discharge under other than honorable conditions is normally appropriate
for a Soldier discharged under this chapter.

13.  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.

14.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends that the civilian conviction was
dropped after he complied with the judge’s orders, there is no evidence to
support his contention.

2.  A discharge is not upgraded for the sole purpose of obtaining medical
benefits from the Department of Veterans Affairs.

3.  The applicant’s record of service included one nonjudicial punishment
and 20 days of lost time.  He also committed a serious civil offense (lewd
molestation upon a 4-year old female) while in the Army.  As a result, his
record of service was not satisfactory and 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
a general discharge or an honorable discharge.

4.  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.

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

6.  Records show the applicant should have discovered the alleged injustice
now under consideration on 1 November 1984; therefore, the time for the
applicant to file a request for correction of any injustice expired on 31
October 1987.  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

JS_____  PM______  LO_____  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.




            ___John Slone________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050005130                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051123                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |19841101                                |
|DISCHARGE AUTHORITY     |AR 635-200 Chapter 14                   |
|DISCHARGE REASON        |Misconduct due to civilian conviction   |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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