RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060006468


      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. Allen L. Raub                 |     |Chairperson          |
|     |Mr. Frank C. Jones                |     |Member               |
|     |Mr. Qawly A. Sabree               |     |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 his bad conduct discharge (BCD)
be upgraded to general, under honorable conditions, or honorable.

2.  The applicant states, in effect, that his discharge should be upgraded
and changed because he felt he gave the military the prime of his life and
was willing to die for his country.  He states that under stressful moments
of his life, he took actions he regrets.  The military did not stand to
defend him but more or less prosecuted him.  He was made to sign counseling
statements for things that he felt he still needed counseling for.  He
received a BCD with a reprimand which prevents him from obtaining decent
employment.

3.  He states that along with serving 3 months of his life not for his
country or his own free will, he was given a host of fines and fees.  He
felt that the Army snatched the pride right off his chest and now feels he
deserves an honorable discharge.

4.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty) and a copy of his court-martial
order in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 3 April 2000, the date of his discharge.  The application
submitted in this case is dated 24 April 2006, but was received for
processing on 8 May 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.  The applicant's record shows he enlisted in the U. S. Army Reserve
(USAR)  on 17 February 1993, for training in military occupational
specialty (MOS), 91B, Medical Specialist, in pay grade E-2, for 8 years.

4.  Item 35 (Record of Assignments), of his DA Form 2-1 (Personnel
Qualification Record-Part II), shows he completed 62 days of ADT (active
duty for training) and 15 days of AT (annual training).

5.  The applicant enlisted in the Regular Army on 11 August 1994, in pay
grade E-3.  The applicant successfully completed advanced individual
training (AIT) at Fort Jackson, South Carolina.  On completion of his
advanced training, he was awarded the military occupational specialty
(MOS), 71L, Administrative Specialist.

6.  On 26 February 1996, the applicant was punished under Article 15,
Uniform Code of Military Justice (UCMJ), for being indebted to the U.S.
Army Finance and Accounting Office in the sum of $778.29 and for
dishonorably failing to pay this debt.  His punishment consisted of a
reduction to pay grade E-2 (suspended) and 14 days restriction and extra
duty.

7.  At a general court-martial on 26 November 1996, the applicant entered
mixed pleas to numerous offenses under the UCMJ.  He was found guilty of:
attempted destruction of mail between on or about 29 May 1996 and 6 June
1996        (Charge I/specification); making and signing a false official
statement on 29 April 1996 (Charge II/specification); adultery between on
or about 1 March 1996 and 1 April 1996 (Charge V/specification 1);
adultery between on or about 15 February 1996 and 1 March 1996 (Charge
V/Specification 2); for wrongfully taking certain mail matter between on
or about 29 May 1996 and 6 June 1996 (Charge V/  specification 4); for
wrongfully opening and/or stealing certain mail matter between on or about
29 May 1996 and 6 June 1996 (Charge V/specification 5); and for willfully
and unlawfully taking a public record with intent to remove and destroy on
or about 6 June 1996 (Charge V/specification 6).

8.  Charges were dismissed by the military judge for:  rape, between on or
about 1 March 1996 and 1 April 1996 (Charge III/specification 1); rape,
between on or about 23 February 1996 and 26 February 1996 (Charge
III/specification 2); and for adultery between on or about 1 January 1996
and 1 April 1996 (Charge V/specification 3).  Charges were dismissed by the
ACCA (Army Court of Criminal Appeals) for larceny of military property of
some value on or about 6 June 1996 (Charge IV/specification).  His sentence
consisted of a reduction to the lowest enlisted grade, to forfeit $300.00
pay per month for 3 months, confinement for 3 months, a reprimand, and a
BCD.



9.  The applicant's record of trial contains a copy of a "corrected copy"
of his court-martial order.  Page 2, of the court-martial order indicated
that he was reprimanded on the same day of his court-martial for the
offenses of attempted destruction of mail, false official statement,
larceny, adultery, wrongful taking of mail, wrongfully opening and/or
stealing of mail, and unlawfully taking a public record.  It also indicated
that the applicant had violated the professional and personal ethics the
Army demands of its Soldiers.  His conduct represented a conscious
violation of the minimum and fundamental standards expected of all members
of the command.  His lack of integrity, self-discipline, and judgement was
an embarrassment to his unit and the U. S. Army.

10. On 29 June 1998, the ACCA affirmed the findings, except Charge IV and
its specification which was set aside and dismissed, set aside the sentence
and authorized a rehearing on the sentence.  On 28 January 1999, the
applicant was sentenced to be reprimanded and discharged with a bad conduct
discharge.  On 27 August 1999, ACCA affirmed the new sentence.

11.  On 3 April 2000, the applicant was discharged from the Army pursuant
to the sentence of the general court-martial and was issued a BCD.  He had
completed 5 years, 5 months, and 8 days of creditable service and had
84 days of lost time due to confinement.

12.  The applicant's case is ineligible for review  by  the  Army  Discharge
Review Board (ADRB) due to his conviction by a general court-martial.

13.  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 sentence affirmed before it can
be duly executed.

14.  Army Regulation 635-200, paragraph 3-7b, 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.




15.  Army Regulation 635-200, paragraph 3-7a, 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, 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.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The evidence of record shows that the applicant was convicted by a
general court-martial for attempted destruction of mail, making and signing
a false official statement, adultery on two occasions, wrongfully taking
certain mail matter, wrongfully opening and/or stealing certain mail
matter, and for willfully and unlawfully taking a public record.  He was
discharged pursuant to the sentence of a general court-martial and was
issued a BCD.

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.  The applicant's contentions were considered; however, they were not
sufficiently mitigating to warrant an upgrade of his discharge to
honorable.
One specific contention was that his BCD prevents him from obtaining
employment; however, the Board does not grant relief solely for the purpose
of enabling an applicant to obtain better employment opportunities.

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

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 April 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 2 April 2003.  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

___ALR _  __QAS__  __FCJ___  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.




                                  ____   Allen L. Raub _________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006469                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |BCD                                     |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . 635-200, chap 3                    |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |144                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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