RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            07 September 2006
      DOCKET NUMBER:   AR20060004063


      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. Susan Powers                  |     |Chairperson          |
|     |Mr. Jonathan Rost                 |     |Member               |
|     |Mr. David Haasenritter            |     |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 to a general discharge.

2.  The applicant states that he desires to be given a second chance and
the opportunity to be proud of his name and of his Army service.

3.  The applicant provides a copy of his report of separation.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 24 March 1989.  The application submitted in this case is dated
6 March 2006.

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.  He enlisted in the Regular Army in Nashville, Tennessee, on 17
September 1982 for a period of 3 years and training as a petroleum supply
specialist.  He completed his basic combat training at Fort Knox, Kentucky,
and his advanced individual training (AIT) at Fort Lee, Virginia.

4.  He completed his AIT on 9 February 1983 and was married on 23  February
1983.  He was transferred to Fort Lewis, Washington on 11 March 1983.  He
was transferred to Germany in August 1984 and his family arrived in
September 1984.  He was promoted to the pay grade of E-5 on 1 May 1986.

5.  On 12 June 1987, he reenlisted for a period of 6 years, a selective
reenlistment bonus and assignment to Fort Story, Virginia.  He departed
Germany on 31 July 1987 and was transferred to Fort Story.

6.  On 13 January 1980, a final Criminal Investigation Division (CID)
Report of Investigation was prepared that indicated that there was
sufficient evidence to title the applicant under Article 134, Uniform Code
of Military Justice (UCMJ) for indecent acts with a child under the age of
16.  The investigation also disclosed that initially when the applicant had
been interviewed by a military police investigator on 17 December 1988, he
had waived his rights and rendered a sworn statement denying the offense.

7.  He again rendered a sworn statement denying the offense on 19 December
1988 and on 5 January 1989, while being interviewed by a CID special agent,
the applicant rendered a sworn statement admitting to the offenses and
indicating that he was scared of what would happen to him and that is why
he lied in his original statements.

8.  On 6 March 1989, charges were preferred against the applicant for
committing an indecent act with a female under the age of 16, who was not
his wife, by placing his hands twice on her buttocks, with intent to arouse
his lust and sexual desire.

9.  On 10 March 1989, after consulting with defense counsel, the applicant
submitted a request for discharge for the good of the service, under the
provisions of Army Regulation 635-200, chapter 10, in lieu of trial by
court-martial.  In his request he indicated that he understood the charges
that had been preferred against him, that he was making the request of his
own free will, without coercion from anyone and that he was aware of the
implications attached to his request.  He also admitted that he was guilty
of the charges against him or of lesser included offenses which authorized
the imposition of a bad conduct or dishonorable discharge.  He acknowledged
that he understood that he could receive a discharge under other than
honorable conditions and that he might be deprived of all benefits as a
result of such a discharge.  He further declined to submit a statement in
his own behalf.

10.  The appropriate authority (a major general) approved the request on
17 March 1989 and directed that he be discharged under other than honorable
conditions.

11.   Accordingly, he was discharged under other than honorable conditions
on 24 March 1989, under the provisions of Army Regulation 635-200, chapter
10, in lieu of trial by court-martial.  He had served 6 years, 6 months and
8 days of total active service.

12.  There is no evidence in the available records to show that he ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 10 of the regulation provides,
in pertinent part, that a member who has committed an offense or offenses
for which the authorized punishment includes a punitive discharge may at
any time after charges have been preferred, submit a request for discharge
for the good of the service in lieu of trial by court-martial.  A condition
of submitting such a request is that the individual concerned must admit
guilt to the charges against them or of a lesser included offense which
authorizes the imposition of a bad conduct or dishonorable discharge and
they must indicate that they have been briefed and understand the
consequences of such a request as well as the discharge they might receive.
 A discharge under other than honorable conditions is normally considered
appropriate.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  Accordingly, the type of discharge directed and the reasons therefore
were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions have been noted by the Board; however, they
are not sufficiently mitigating to warrant relief when compared to his
overall record of service and the seriousness of his misconduct.  His
service simply does not rise to the level of a discharge under honorable
conditions.

4.  After being afforded the opportunity to assert his innocence before a
trial by court-martial, he voluntarily requested a discharge for the good
of the service in hopes of avoiding a punitive discharge and having a
felony conviction on his records.  In doing so he admitted guilt to the
charges against him.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 24 March 1989; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 23 March 1992.  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

____DH _  ___JR___  ___SP __  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.




                                  _____Susan Powers_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004063                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |(UOTHC)                                 |
|DATE OF DISCHARGE       |1989/03/24                              |
|DISCHARGE AUTHORITY     |AR635-200/CH10 . . . . .                |
|DISCHARGE REASON        |GD OF SVC                               |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |689/A70.00                              |
|1.144.7000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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