RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:
      DOCKET NUMBER:   AR20050013442


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Carol Kornhoff                |     |Chairperson          |
|     |Mr. John Moeller                  |     |Member               |
|     |Mr. Edward Montgomery             |     |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 bar to reenlistment be
removed from his records, that he be paid monetary benefits as a result of
the upgrade of his discharge and given authority to use his Montgomery G.I.
Bill benefits for college.

2.  The applicant states that the Army Discharge Review Board (ADRB)
determined that his discharge was improper and he believes that the bar to
reenlistment should be removed because it was enacted against him in the
same course as the improper discharge was perpetrated.  He also states that
had he not been improperly discharged, he would have been paid for the
remaining 19 months of his service and would have been promoted.
Accordingly, he should be compensated for the loss of pay that the
miscarriage of justice caused.

3.  The applicant provides a copy of the ADRB Case Report and Directive and
a deposit form for the Inmate Trust Fund to be used to deposit his
compensation.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Regular Army on 24 January 1990 for a period of 4
years, training as a cannon crewmember and a cash enlistment bonus.  He
completed his one-station unit training (OSUT) at Fort Sill, Oklahoma, and
was transferred to Baumholder, Germany on 22 May 1990.  He was advanced to
the pay grade of E-3 on 3 July 1990 and on 6 January 1991, he was assigned
government quarters.

2.  On 23 December 1991, nonjudicial punishment (NJP) was imposed against
the applicant for adultery.  His punishment consisted of a reduction to the
pay grade of E-2, a forfeiture of pay (suspended for 60 days) and extra
duty.

3.  On 11 February 1992, a final criminal investigation division (CID)
report was prepared which indicated that there was sufficient evidence to
title the applicant for having carnal knowledge with a 15 year old German
national and adultery.

4.  On 13 February 1992, the applicant’s commander initiated action to bar
him from reenlistment.  He cited the NJP and six instances in which the
applicant failed to pay his just debts as the basis for his recommendation.
 The applicant declined to make a statement in his own behalf and the
battalion commander approved the bar to reenlistment on 15 February 1992.
The bar to reenlistment was reviewed by the commander on 15 May 1992 and
the commander recommended that it remain in effect.

5.  On 29 May 1992, the applicant’s commander notified him that he was
initiating action to separate him from the service under the provisions of
Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a
serious offense.  He cited the CID Report in which the applicant was titled
for Carnal Knowledge and Adultery as the basis for his recommendation.

6.  On 15 June 1992, the special court-martial convening authority approved
the recommendation for discharge and directed that the applicant be
furnished a General Discharge Certificate.

7.  The applicant was transferred to Fort Dix, New Jersey, where he was
discharged under honorable conditions on 29 June 1992, under the provisions
of Army Regulation 635-200, paragraph 14-12c for misconduct – commission of
a serious offense.  He had served 2 years, 5 months and 6 days of total
active service.

8.  On 20 October 2003, he applied to the ADRB for an upgrade of his
discharge contending that his discharge was inequitable because it was
based on an accusation by a female he never knew.  The ADRB reviewed the
facts and circumstances surrounding his discharge and determined that the
commander had used board procedures to notify the applicant of his
administrative separation and that the special court-martial convening
authority approved the separation.  The ADRB further opined that the
applicant was not entitled to a separation board by virtue of his length of
service (less than 6 years); however, because the board procedures were
used, the general court-martial convening authority was the proper
authority to approve the separation.  Accordingly, the ADRB voted to
upgrade his discharge to honorable by reason of Secretarial Authority on 22
September 2004.

9.  A review of the available records shows that the applicant was
sentenced on  15 June 2000 to 20 years in a Texas Correctional Facility for
Aggravated Sexual Assault.  He is currently incarcerated in a facility in
Gatesville, Texas.

10.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
procedures for separating personnel for misconduct.  Specific categories
included minor infractions, a pattern of misconduct, involvement in
frequent incidents of a discreditable nature with civil and military
authorities, and commission of a serious offense.  A discharge under other
than honorable conditions is normally considered appropriate.  That
regulation also provides that if an individual is notified that the worst
discharge they can receive is under other than honorable conditions, the
approval authority is the general court-martial convening authority.
DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions of the ADRB to upgrade his discharge to
fully honorable, it appears that the applicant was properly discharged for
misconduct – commission of a serious offense.

2.  While the recommendation for discharge was signed by the special
 court-martial convening authority instead of the general court-martial
convening authority, that error worked in the applicant’s favor because the
lowest discharge the special court-martial convening authority could give
him was a general discharge.  However, the general court-martial convening
authority could have given him a discharge under other than honorable
conditions, which is the discharge most commonly given for misconduct such
as the applicant’s.

3.  The applicant’s contentions have been noted and found to be without
merit.  He was properly barred from reenlistment well before his discharge
and it appears that the bar was justified.  Accordingly, there is no basis
to remove it from his records.

4.  It also appears that the commander was also justified in processing the
applicant for administrative separation prior to the expiration of his term
of service.  While the applicant has succeeded in getting his discharge
upgraded based on an administrative oversight that occurred in processing,
it does not constitute a basis to grant him additional service credit or
pay for service he did not perform, especially since it appears that his
discharge was justified.

5.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

____CK _  ___JM __  ____EM _  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.





                                  ______Carol Kornhoff_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050013442                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060523                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19920629                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 5, PARA 5-3. . . . .     |
|DISCHARGE REASON        |SEC AUTH                                |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |283/PA                                  |
|1.128.0000              |                                        |
|2.134.0000              |328/REM BAR                             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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