RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 August 2007
      DOCKET NUMBER:  AR20070003383


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Mr. Rowland C. Heflin             |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD).

2.  The applicant states, in effect, he was a great Soldier and had no
problems in the military until he got married.  He states that after being
stationed at Fort Carson, Colorado, he found out his wife was seeing her ex-
husband.  He made it clear to his wife that he wanted a divorce and he
began seeing another Soldier who was in his chain of command.  He also
states that he was charged with stealing Government property.  He claims
this property was damaged goods that were expendable and that he had gotten
the property from his previous unit.  He claims the Staff Judge Advocate
(SJA) sided with his ex-wife and not with him and that his sergeant major
knew that he was out of the home when all this took place.  He also knew
his wife's ex-husband was staying in his quarters.  He states he never had
a problem with the military and desires that the Board at least upgrade his
discharge to a GD.

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

CONSIDERATION OF EVIDENCE:

1.  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 also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he initially enlisted in the Regular
Army and entered active duty on 12 October 1982.  He was trained in and
awarded military occupational specialty (MOS) 76Y (Supply Specialist), and
on 21 May 1986, he reenlisted for 6 years.

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
the applicant completed an overseas tour in Korea and earned the following
awards during his tenure on active duty:  Army Service Ribbon; Overseas
Service Ribbon; Army Commendation Medal 1st Oak Leaf Cluster; Army
Achievement Medal; and Expert Marksmanship Qualification Badge with Rifle
Bar.  Item 18 (Appointments and Reductions) shows he was promoted to
sergeant (SGT) on
6 April 1986, and that this is the highest rank he attained while serving
on active duty.  It also shows he was reduced to specialist (SPC) on 12
July 1990.

4.  On 27 April 1990, the applicant accepted non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ) for wrongfully appropriating Government property valued in excess of
$100.00.  His punishment for this offense was a reduction to SPC
(Suspended) and a forfeiture of $200.00 per month for two months.

5.  On 16 May 1990, the unit commander submitted a Bar to Reenlistment
Certificate on the applicant.  He stated the reasons for his initiating
this action was the applicant's Article 15 of 7 May 1990, for the wrongful
appropriation of Government property.

6.  On 12 July 1990, the applicant's suspended reduction to SPC was vacated
based on the applicant's disobeying a lawful order from a superior
commissioned officer on 2 July 1990.

7.  A Military Police Report, dated 26 March 1990, contains an
investigation summary that shows the applicant was investigated for
removing Government property from various locations on Fort Carson, with
the intent to deprive the Government.  Upon the completion of the
investigation, the Military Police Investigator (MPI) coordinated with the
SJA who opined that there was sufficient evidence to believe the applicant
had committed the offense of larceny of Government property.

8.  A Criminal Investigation Division (CID) Report of Investigation, dated
in May 1990, on file in the applicant's Official Military Personnel File
(OMPF), confirms the applicant was investigated for indecent assault upon a
child under the age of 16 on or about 1 January 1988 through on or about 31
January 1990.  The report indicated the investigation disclosed the
applicant indecently assaulted a female under the age of 16.  On 8 May
1990, the CID investigator coordinated with the SJA, who opined there was
sufficient evidence to believe the applicant committed the offense of
indecent assault.

9.  A Military Police Report, dated 24 July 1990, contains an investigation
that indicates the applicant became romantically involved with a female
Soldier whom he supervised and who was in his chain of command.  Further
the applicant and the other Soldier began living together and having sexual
intercourse while the applicant was still legally married.  It further
indicated that on 26 March 1990, the applicant disobeyed a lawful order or
regulation by borrowing money from the female Soldier with whom he was
involved, his subordinate.  Upon completion of the investigation, the MPI
coordinated with the SJA, who opined there was sufficient evidence to
believe the applicant had committed the offenses under investigation.

10.  On 21 August 1990, the unit commander notified the applicant that he
intended to initiate action to separate the applicant under the provisions
of paragraph 14-12c, Army Regulation 635-200, based on the applicant's
commission of a serious offense.  The unit commander cited the applicant's
larceny of Government property and adultery, by cohabitating with a woman
not his wife, while still legally married as the basis for taking the
action.

11.  On 22 August 1990, the applicant consulted with legal counsel and was
advised of the basis for the contemplated action to separate him for the
commission of a serious offense under the provisions of paragraph 14-12c,
Army Regulation 635-200 and its effects, of the rights available to him,
and of the effect of a waiver of those rights.  Subsequent to this
counseling, the applicant elected to have his case considered by an
administrative separation board, to personally appear before an
administrative separation board, and to have consulting counsel.

12.  On 1 October 1990, an administrative separation board convened at Fort
Carson to consider the applicant's case.  The applicant and his counsel
were present.  Upon completion of the hearing and hearing from all the
witnesses and from the applicant, the board found the allegations in the
notice of proposed separation were supported by a preponderance of the
evidence, and recommended that the applicant be separated for commission of
serious offense and issued an UOTHC discharge.

13.  On 17 October 1990, the separation authority approved the applicant's
separation and directed he receive an UOTHC discharge and that he be
reduced to the lowest enlisted grade.  On 2 November 1990, the applicant
was discharged accordingly.

14.  The separation document (DD Form 214) issued to the applicant confirms
he completed a total of 8 years and 23 days of active military service at
the time of his discharge.

15.  There is no indication that the applicant applied to the Army
Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.

16.  Army Regulation 635-200 (Personnel Separations) 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.  Although an honorable discharge (HD) or GD may be
issued by the separation authority if warranted by the member's overall
record of service, an UOTHC discharge is normally appropriate for a Soldier
discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded
because he was a great Soldier and that his chain of command took his ex-
wife's side was carefully considered.  However, there is insufficient
evidence to support this claim.

2.  The evidence of record confirms the applicant's separation processing
was accomplished in accordance with the applicable regulation.  At his
request, an administrative separation board considered his case and
determined the preponderance of the evidence supported the allegations upon
which his separation processing was based, and recommended he be separated
for the commission of a serious offense and that he receive an UOTHC
discharge.  All requirements of law and regulation were met, and his rights
were fully protected throughout the separation process.

3.  Further, although the applicant's military service record prior to the
offenses in question was good, given the gravity of the multiple serious
offenses he committed, it was not sufficiently meritorious for the
separation authority to support an HD or GD at the time, nor does it
support an upgrade at this time.

4.  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

__PMS __  __REB  _  __RCH __  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.




                                  _____Paul M. Smith   ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070003383                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/08/28                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1990/11/02                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |C14                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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